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BANCROFT 
LIBRARY 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 


SUBJECT 

Appropriation  of  Water  and  Rights  of  Way  for  Reservoirs 

AND  Canals  on  Public  Lands  and  Reservations 

OF  THE  United  States. 


IN  THE 


Supreme  Court  of  the  United  States 


OcTOBEB  Term,  1915. 


The  Beaver  River  Power  Company, 

Appellant, 
vs. 

The  United  States, 

Appellee. 

The  United  States, 

Appellant, 
vs. 

The  Beaver  River  Power  Company, 

Appellee. 

No.  574. 


No.  575. 


Appeals  from  the  District  Court  of  the  United  States, 
for  the  District  of  Utah. 

BKIEF  SUPPORTING  APPEAL  OF  THE 
BEAVER  RIVER  POWER  COMPANY 


William  B.  Bosley, 

Amicus  Curiae. 
San  Francisco,  California 


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TABLE  OF  CONTENTS. 


1.  Table  of  statutes  and  regulations  cited V 

2.  Table  of  cases  and  authorities  cited VII 

3.  Synopsis  of  brief XI 

4.  Brief 1  to  76 

5.  Appendix  containing  statutes  cited 3  to  25 


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in  2007  with  funding  from 

IVIicrosoft  Corporation 


http://www.archive.org/details/beaverriverpowerOOboslrich 


V 
TABLE  OF  STATUTES  AND  REGULATIONS  CITED. 


(Eacli  act,  or  the  part  thereof  here  involved,  is  printed 
in  the  appendix  at  the  page  shown  below  in  bold  face 
type ;  other  references  are  to  pages  of  the  argument) . 

Act  of  July  26,  1866,  14  Stat,  at  L.  251. .  3,    7,    9, 16,  31 

Act  of  July    9,  1870,  16  Stat,  at  L.  217. .  4,    7 

Act  of  March  3,  1875,  18  Stat,  at  L.  482.  .24, 11,  21 

Act  of  March  3,  1877,  19  Stat,  at  L.  377. .  6,  6-7,15,22,  29,  39, 

56,71 
Act  of  March  3,  1891,  26  Stat,  at  L.  1095.  8,  6-7,10-19,  21,  22, 

28,  31,  39,  40,  41, 

43,57 
Act  of  Jan.  21,  1895,  28  Stat,  at  L.  635. .  .10, 16,  23,  27,  41 
Act  of  May  14,  1896,  29  Stat,  at  L.  120. .  .11,  27,  30,  41 
Act  of  Feb.  26,  1897,  29  Stat,  at  L.  599. .  .12, 16,  23 
Act  of  June  4,  1897,  30  Stat,  at  L.  11. . .  .13,  6-7,14-16, 19,  22, 

23,24,29,39,42,56 
Act  of  May  11,  1898,  30  Stat,  at  L.  404. .  .17,  6-7,14,16, 17,  22, 

27,28,31,39,41,57 
Act  of  Feb.  15,  1901,  31  Stat,  at  L.  790. .  .18,  25  to  76 
Act  of  June  17,  1902,  32  Stat,  at  L.  388 . .  .20,  29,  39 
Act  of  Feb.    1,  1905,  33  Stat,  at  L.  628. .  .21,  27,  70,  72,  75 
Act  of  Feb.  6,  1905,  33  Stat,  at  L.  700.  .  .23 
Constitution  of  U.  S.,  Art.  IV,  Sec.  3. . . .       59 

Regulations,  departmental    29,  41,  42 

Revised  Statutes  of  the  U.  S.,  Sec.  2339.  .   5,  6-7,15,16,  22,  29, 

30,  31,  39,  56,  57 

Revised  Statutes  of  the  U.  S.,  See.  2340. .   5,  6-7,15,22,  29,  31, 

39,  56,  57 


VII 
TABLE  OF  CASES  AND  AUTHORITIES  CITED. 

PAGE 

Allen  V.  Denver  Power  and  Irrigation  Co.,  38  L.  D.  207 . .  41 
Assistant  Attorney-General  Campbell,  opinion  of,  32  L. 

D.  254   29 

Assistant  Attorney-General  Campbell,  opinion  of,  33  L. 

D.  563    12 

Atchison  v.  Peterson,  20  Wall.  507 39 

Baltimore  and  Ohio  S.  W.  Ry.  Co.  v.  Voigt,  176  U.  S. 

498    68 

Basey  v.  Gallagher,  20  Wall.  670 8 

Bemier  v.  Bernier,  147  U.  S.  242 50 

Black's  Pomeroy  on  Water  Rights 8,39 

Boise  Artesian  Hot  and  Cold  Water  Co.  v.  Boise  City, 

230  U.  S.  84 47 

Brent  v.  Bank  of  Washington,  10  Peters.  596 55 

Broder  v.  Natoma  Water  and  M.  Co.,  101  U.  S.  274 8 

Butte  City  Water  Co.  v.  Baker,  196  U.  S.  119 65 

Buttfield  V.  Stranahan,  192  U.  S.  470 65 

Bybee  v.  Oregon  and  California  R.  R.  Co.,  139  U.  S.  663.41 
Cascade  Town  Co.  v.  Empire  W.  and  P.  Co.,  181  Fed. 

1011    8,9 

Same  ca»se  on  appeal,  205  Fed.  123 8 

Chicago,  Milwaukee  and  St.  Paul  Railroad  Co.  v.  Wis- 
consin, 238  U.  S.  491 48 

Cope  V.  Cope,  137  U.  S.  682 33 

Cook  V.  Port  of  Portland,  20  Ore.  580,  27  Pac.  263, 

13  L.  R.  A.  533 73 

Cooley's  Constitutional  Limitations  (7th  ed.),  page  163.60 

Daniels  v.  Wagner,  237  U.  S.  547 37 

Delta,  Town  of,  32  L.  D.  461 41 

De  Necochea  v.  Curtis,  80  Cal.  397 8 

Denver  Power  and  Irrigation  Co.  v.  Denver  &  R.  G.  R. 

Co.,  30  Colo.  204,  69  Pac.  568 16 

De  Weese  v.  Henry  Investment  Co.,  39  L.  D.  27 11 

Ex  Parte  Kollock,  165  U.  S.  526 65 


VIII 

TABLE  OF  CASES  CITED— Continued. 

PAGE 

Farley  v.  Spring  Valley  Mining  and  Irrigating  Co.,  58 

Cal.  142  8 

Farnham  on  Waters  and  Water  Eights 8,39 

Field  V.  Clark,  143  U.  S.  649 62,64 

Grafton  County  E.  L.  &  P.  Co.  v.  State,  77  N.  H.  539, 

94  Atl.  193 68 

Greenhood  on  Public  Policy  in  the  Law  of  Contracts, 

Eule  CXL,  citing  Pierce  v.  Randolph,  12  Tex.  290.  .68 
Greenwood  Lake  and  Port  Jervis  E.  E.  Co.  v.  New  York 

and  Greenwood  Lake  E.  E.  Co,  134  N.  Y.  435 48 

Gutierres  v.  Albuquerque  Land  &  Irr.  Co.,  188  U.  S.  545  8,39,71 

Harmon  v.  State,  66  Ohio  St.  249,  58  L.  E.  A.  618 65 

Hartford  Fire  Insurance  Co.  v.  Chicago  M.  &  St.  P.  Ey. 

Co.,  175  U.  S.  91 68 

Hathorn  v.  Stinson,  10  Maine  224,  25  Am.  Dec.  228 15 

Hawaii  v.  Mankichi,  190  U.  S.  197 50 

Heath,  in  re,  144  U.  S.  92 15,23 

Hildreth  v.  Montecito  Creek  Water  Co.,  139  Cal.  22 18 

Hudson  County  Water  Company  v.  McCarter,  209  U. 

S.   349    70 

Interstate   Commerce   Commission  v.   Goodrich  Transit 

Co.,  224  U.  S.  194 64,65 

Iowa  V.  Carr,  191  Fed.  257 .54 

Jamestown  and  Northern  Eailroad  Co.  v.  Jones,  177  U.  S. 

125    11,21 

Julien  V.  Model  Building,  L.  &  I.  Assn.,  116  Wis.  79, 

61  L.  E.  A.  668 68 

Kansas  v.  Colorado,  206  U.  S.  46 39,70 

Kilboum  v.  Thompson,  103  U.  S.  168 61 

Kimball  v.  Gearhart,  12  Cal.  27 39 

Kohlsaat  v.  Murphy,  96  U.  S.  153 23,32 

Kollock,  ex  parte,  165  U.  S.  526 65 

Lambom  v.  Bell,  18  Colo.  346,  32  Pac.  989 16 

Lewis '  Sutherland  on  Statutory  Construction,  Sec  405 . .  23 

License  Tax  Cases,  5  Wall.  462 68 

Light  V,  United  States,  220  U.  S.  523 65 


IX 

TABLE  OF  CASES  CITED— Continued. 

PAGE 

Lincoln  County  Water  etc.  Co.  v.  Big  Sandy  Reservoir 

Co.,  32  L.  D.  463 22,40 

Lucas  V.  Ashland  Light,  M.  &  P.  Co.,  92  Neb.  550,  138 

N.  W.  761 16 

Maeris  v.  Bicknell,  7  Cal..261 39 

Miller  v.  Mayor  etc.  of  New  York,  109  U.  S.  385 64 

Monongahela  Bridge  Co.  v.  United  States,  216  U.  S.  177.64 

Morrill  v.  Jones,  106  U.  S.  466 24 

Mt.  Vemon-Woodberry  C.  D.  Co.  v.  Alabama  Interstate 

Power  Co.,  240  U.  S.  30 17 

Mutual  Film  Corporation  v.  Industrial  Commission  of 

Ohio,  236  U.  S.  230 64,65 

New  Mexico  v.  United  States  Trust  Co.,  172  U.  S.  171. .  .19 
New  York  Electric  Lines  Co.  v.  Empire  City  Subway 

Co.,  235  U.  S.  179 47 

Noble  V.  Union  River  Logging  R.  R.  Co.,  147  U.  S.  165.  .41 
Northern  Pacific  Ry.  Co.  v.  Townsend,  190  U.  S.  267. . .  .19 
O'Neil  V.   American  Fire   Ins.   Co.,   166  Penn.    St   72, 

26  L.  R.  A.  715 65 

Owensboro  v.  Cumberland  Telephone  and  Telegraph  Co., 

230  U.  S.  58 47,48,53 

Pine  Tree  Lumber  Co.  v.  McKinley,  83  Minn.  419,  86 

N.   W.    414 15 

Plimmer  v.  Wellington,  L.  R.,  9  App.  Cas.  699 48,55 

Pomeroy  on  Water  Rights,  Black's  Ed 8,39 

Prescott  V.  White,  21  Pick.  341,  32  Am.  Dec.  266 15 

Red  Rock,  Town  of,  v.  Henry,  106  U.  S.  596 33,59 

Rio  Grande  Western  Ry.  Co.  v.  Stringham,  239  U.  S.  44.19 

Rio  Verde  Canal  Co.,  27  L.  D.  421 19 

Riverside  Water  Co.  v.  Sargent,  112  Cal.  230 39 

Russell  V.  Sebastian,  233  U.  S.  195 47 

St.  Louis  Mining  and  Milling  Co.  v.  Montana  Mining 

Co.,  171  U.  S.  650 68 

Santa  Fe  Pac.  R.  R.  Co.,  29  L.  D.  213 22,40 

Schulenberg  v.  Harriman,  21  Wall.  44 41 

South  Platte  Canal  and  Reservoir  Co.,  20  L.  D.  154 41 

Stalker  v.  Oregon  Short  Line  R.  Co.,  225  U.  S.  142 11 


TABLE  OF  CASES  CITED— Continued. 

PAGE 
State  V.  Burdge,  95  Wis.  390,  37  L.  R.  A.  157 65 

Stoner  v.  Zucker,  148  Cal.  516 48 

Sutherland  on  Statutory  Construction,  Lewis',  Sec.  405.23 

Thayer  v.  California  Development  Co.,  164  Cal.  117 18 

Thompson  Co.  v.  Pennebaker,  173  Fed.  849 9 

Town  of  Delta,  32  L.  D.  461 41 

Town  of  Red  Rock  v.  Henry,  106  U.  S.  596 33,59 

Trustees  of  Southampton  v.  Jessup,  162  N.  Y.  122 48 

Union  Bridge  Co.  v.  United  States,  204  U.  S.  364 64 

United  States  v.  Delaware  and  Hudson  Co.,  213  U.  S. 

366    33 

United  States  v.  Denver  and  Rio  Grande  R.  Co.,  150 

U.  S.  1 47 

United  States  v.  Eaton,  144  U.  S.  677 24,65 

United  States  v.  Grimaud,  220  U.  S.  506 65 

United  States  v.  E.  C.  Knight  Company,  156  U,  S.  1. . .  .70 

United  States  v.  Lee,  15  N.  M.  382,  110  Pac.  607. .  .12,21,28 

United  States  v.  Portneuf -Marsh  etc.  Co.,  205  Fed.  416.28 

Same  case  on  appeal,  213  Fed.  601 28 

United  States  v.  Rio  Grande  Dam  and  Irrigation  Com- 
pany, 174  U.  S.  690 70 

United  States  v.  Stinson,  125  Fed.  907 54 

Same  case  on  appeal,  197  U.  S.  200 54 

United  States  v.  Utah  Power  and  Light  Co.,  208  Fed. 
821    9 

Same  case  on  appeal,  209  Fed.  554 9,30 

Utah  N.  &  C.  R.  Co.  v.  Utah  &  C.  Ry.  Co.,  110  Fed.  879.  .41 

Yidal  et  al.  v.  Girard's  Executors,  2  How.  127 68 

Walker  v.  Shasta  Power  Co.,  160  Fed.  856 17 

Walker  v.  United  States,  139  Fed.  409 54 

Same  case  on  appeal,  148  Fed.  1022 54 

Wayman  v.  Southard,  10  Wheat.  1 63,64 

Werling  v.  Ingersoll,  181  U.  S.  131 15 

Williamson  v.  United  States,  207  U.  S.  425 24 

Wilmot  V.  Mudge,  103  U.  S.  217 33 

Wood  V.  Etiwanda  Water  Co.,  122  Cal.  152 8 


XI 


SYNOPSIS. 

PAGE 

1.  Statement  of  the  case 2 

(a)  Material  facts  stated 2 

(b)  Questions  involved  in  defendant's  appeal 

stated     3 

2.  Specification  of  errors 5 

3.  Argument    6 

Proposition  No.  1.    The  following  Acts  of  Con- 
gress, viz: 

Sections  2339  and  2340  of  the  United  States 
Revised  Statutes; 

An  Act  entitled,  ' '  An  Act  to  Provide  for  the 
Sale  of  Desert  Lands  in  Certain  States  and  Ter- 
ritories," approved  March  3,  1877  (19  U.  S. 
Stat,  at  L.  377) ; 

Sections  18  to  21  of  an  Act  entitled,  ''An 
Act  to  Repeal  Timber- Culture  Laws,  and  for 
Other  Purposes,"  approved  March  3,  1891  (26 
U.  S.  Stat,  at  L.  1095,  1101-3)  ; 

An  Act  entitled, ' '  An  Act  Making  Appropri- 
ations for  Sundry  Civil  Expenses  of  the  Gov- 
ernment for  the  Fiscal  Year  Ending  June  Thir- 
tieth, Eighteen  Hundred  and  Ninety-eight,  and 
for  Other  Purposes,"  approved  June  4,  1897 
(30  U.  S.  Stat,  at  L.  11,  34-36)  ; 

Section  2  of  an  Act  entitled,  *'An  Act  to 
Amend  an  Act  to  Permit  the  Use  of  the  Right  of 
"Way  Through  Public  Lands  for  Tramroads, 
Canals,   and  Reservoirs   and  for   Other  Pur- 
poses," approved  May  11,  1898  (30  U.  S.  Stat. 
at  L.  404) ; 
operate  as  a  grant,  to  all  qualified  grantees  who 
accept  the  same  by  complying  with  the  terms  and 
conditions  therein  prescribed,  of  a  right  of  way 
over  or  a  determinable  fee  in  such  public  or  forest 


XII 


PAGE 


reserve  lands  as  are  located,  appropriated  and  ac- 
tually used  for  reservoirs,  canals  and  other  aque- 
ducts for  impounding,  storing,  diverting  and  con- 
veying water  to  be  used  for  the  generation  of  elec- 
tric power 6 

Proposition  No.  2.  Defendant's  location  and 
appropriation  of  the  public  or  forest  reserve  lands 
involved  in  this  suit,  and  its  construction  thereon 
of  the  reservoir,  pipe  lines  and  other  water  con- 
duits mentioned  in  the  complaint,  and  its  subse- 
quent use  of  such  reservoir,  pipe  lines  and  water 
conduits  for  impounding,  storing,  and  conveying 
the  water  of  Beaver  River  to  defendant's  power 
house  where  it  is  used  for  the  generation  of  elec- 
tric power,  constituted  an  acceptance  of  the  grant 
offered  by  the  aforesaid  Acts  of  Congress,  and  re- 
sulted in  vesting  in  defendant  good  title  to  the 
right  of  way  or  determinable  fee  granted  by  said 
Acts  of  Congress 21 

Proposition  No.  3.  The  Act  of  Congress  en- 
titled, ^'An  Act  Relating  to  Rights  of  Way 
Through  Certain  Parks,  Reservations,  and  Other 
Public  Lands,"  approved  February  15,  1901 
(31  U.  S.  Stat,  at  L.  790)  is  not  to  be  construed 
as  substantive  legislation  superseding  and  by  im- 
plication repealing  the  aforesaid  Acts  of  Con- 
gress             25 

Proposition  No.  4.  The  aforesaid  Act  of  Feb- 
ruary 15,  1901  (assuming  that  it  is  substantive 
legislation  superseding  and  by  implication  repeal- 
ing the  other  Acts  of  Congress  already  men- 
tioned) is  unconstitutional  as  involving  an  unau- 
thorized delegation,  to  executive  officers  of  the 
United  States,  by  Congress,  of  power  specifically 
and  exclusively  conferred  by  the  Constitution 
upon  the  latter 59 


XIII 

Proposition  No.  5.  The  aforesaid  Act  of  Con- 
gress of  February  15,  1901  (assuming  that  it  is 
substantive  legislation  superseding  and  by  impli- 
cation repealing  the  other  aforesaid  Acts  of  Con- 
gress and  is  not  unconstitutional)  is  itself  super- 
seded and  iiepealed,  so  far  as  it  applies  to  rights 
of  way  for  reservoirs  and  aqueducts  appropriated 
for  *  *  municipal, ' '  that  is  to  say  public  or  govern- 
mental, uses,  by  section  4  of  an  Act  entitled,  * '  An 
Act  Providing  for  the  Transfer  of  Forest  Re- 
serves from  the  Department  of  the  Interior  to  the 
Department  of  Agriculture, ' '  approved  February 
1,  1905  (33  U.  S.  Stat,  at  L.  628) 70 


IN  THE 

SUPREME  COURT  OF  THE  UNITED  STATES 

October  Term,  1915. 


The  Beaveb  River  Power  Company, 

Appellant, 
vs. 


The  United  States, 


The  United  States. 


vs. 


Appellee. 


Appellant, 


The  Beaver  River  Power  Company, 

Appellee. 


No.  574. 


No.  575. 


Appeals  from  the  District  Court  of  the  United  States, 
for  the  District  of  Utah. 


BRIEF  BY  WILLIAM  B.  BOSLEY,  AMICUS  CURIAE, 

SUPPORTING  APPEAL  OF  THE  BEAVER  RIVER 

POWER  COMPANY. 


To  Honorable  Edward  Douglass  White,  Chief  Justice,  and  the 
Honorable  Associate  Justices  of  the  Supreme  Court  of  the 
United  States: 
I  respectfully  ask  leave,  as  amicus  curiae,  to  file  this  brief 

for  the  reason  that  the  decision  to  be  rendered  in  this  cause 


will  undoubtedly  be  determinative  of  some  of  the  issues 
involved  in  a  suit  now  pending  in  the  United  States  District 
Court  in  and  for  the  Northern  District  of  California  wherein 
Pacific  Gas  and  Electric  Company,  whose  attorney  of  record 
I  am,  is  plaintiff,  and  David  F.  Houston,  Secretary  of  Agri- 
culture, et  al.,  are  defendants. 

STATEMENT  OF  THE  CASE. 

The  decree  appealed  from  in  this  case  was  entered  pursuant 
to  an  order  sustaining  plaintiff's  motion  to  strike  defendant's 
answer  to  the  bill  of  complaint. 

The  material  facts  admitted  by  plaintiff's  motion  to  strike 
are,  in  substance,  as  follows,  viz: 

(1)  That  defendant  is  in  the  exclusive  possession  of 
certain  lands  situate  in  the  Fillmore  National  Forest  in 
the  State  of  Utah,  and  is  maintaining  and  operating 
thereon  a  hydro-electric  power  plant  consisting  of  a  power 
house,,  reservoir,  certain  pipe  lines  and  conduits,  and 
necessary  adjuncts,  by  means  whereof  the  water  of  Beaver 
River  is  appropriated  and  used  for  the  generation  of 
electric  power; 

(2)  That  the  lands  occupied  and  used  by  defendant 
for  the  purposes  aforesaid  are,  unless  title  thereto  has  been 
acquired  by  defendant  by  virtue  of  its  location,  appro- 
priation and  use  thereof  under  authority  of  certain  Acts 
of  Congress  hereinafter  mentioned,  forest  reserve  lands 
of  the  United  States : 

(3)  That  construction  of  defendant's  said  power  plant 
was  commenced  as  early  as  June,  1905,  and  completed  in 
the  year  1908,  and  thereupon  said  plant  was  put  into 
operation ; 

(4)  That  the  electricity  generated  at  said  power  plant 
has  been  distributed  and  sold  by  defendant  to  the  public 
in  the  State  of  Utah  for  light  and  power  purposes ; 


(5)  That  no  permit  for  the  construction  and  operation 
of  said  power  plant  or  for  the  occupancy  and  use  of  said 
lands  for  the  purposes  aforesaid  has  ever  been  granted 
or  issued  by  the  Secretary  of  the  Interior  or  by  the 
Secretary  of  Agriculture  pursuant  to  the  Act  of  Congress 
of  February  15,  1901,  hereinafter  considered,  or  pursuant 
to  any  other  Act  of  Congress;  and 

(6)  That  defendant  claims,  by  virtue  of  its  location, 
appropriation,  occupancy  and  use  of  the  lands  occupied 
by  said  reservoir,  pipe  lines  and  other  conduits,  power 
house  and  necessary  adjuncts,  and  by  virtue  of  certain 
Acts  of  Congress  hereinafter  considered,  to  be  possessed 
of  title  to,  or  a  permanent  right  of  way  for  the  occupancy 
and  use  of,  the  aforesaid  lands  for  the  maintenance  and 
operation  of  its  said  power  plant. 

The  decree  of  the  District  Court  establishes  and  quiets,  as 
against  all  claims  of  defendant,  plaintiff 's  title  to  the  aforesaid 
lands  and  enjoins  and  restrains  defendant  from  maintaining 
and  operating  upon  said  lands  its  said  power  house,  reservoir, 
pipe  lines  or  conduits  and  necessary  adjuncts. 

Defendant's  appeal  from  said  decree  involves,  and  its 
assignment  of  errors  copied  in  the  transcript  raises,  among 
others,  the  following  questions,  viz: 

Question  No.  1. — Do  the  following  Acts  of  Congress,  viz : 

(a)  Sections  2339  and  2340  of  the  United  States 
Eevised  Statutes; 

(b)  An  Act  entitled,  "An  Act  to  Provide  for  the  Sale 
of  Desert  Lands  in  Certain  States  and  Territories'*, 
approved  March  3,  1877,  (19  U.  S.  Stat,  at  L.  377)  ; 

(c)  Sections  18  to  21  of  an  Act  entitled,  "An  Act  to 
Repeal  Timber-Culture  Laws,  and  for  Other  Purposes", 
approved  March  3,  1891,  (26  U.  S.  Stat,  at  L.,  1095, 
1101-3)  ; 


(d)  An  Act  entitled,  **An  Act  Making  Appropriations 
for  Sundry  Civil  Expenses  of  the  Government  for  the 
Fiscal  Year  Ending  June  Thirtieth,  Eighteen  Hundred 
and  Ninety-eight,  and  for  Other  Purposes '^  approved 
June  4,  1897,  (30  U.  S.  Stat,  at  L.,  11,  34-36) ; 

(e)  Section  2  of  an  Act  entitled,  **An  Act  to  Amend 
an  Act  to  Permit  the  Use  of  the  Eight  of  Way  Through 
Public  Lands  for  Tramroads,  Canals,  and  Reservoirs,  and 
for  Other  Purposes'',  approved  May  11,  1898,  (30  U.  S. 
Stat,  at  L.,  404), 

operate  as  a  grant,  to  all  qualified  grantees  who  accept  the 
same  by  complying  with  the  terms  and  conditions  therein 
prescribed,  of  a  right  of  way  over  or  a  determinable  fee  in 
such  public  or  forest  reserve  lands  as  are  located,  appropriated 
and  actually  used  for  reservoirs,  canals  and  other  aqueducts 
for  impounding,  storing,  diverting  and  conveying  water  to 
be  used  for  the  generation  of  electric  power? 

Question  No.  2. — Did  defendant's  location  and  appropria- 
tion of  the  public  or  forest  reserve  lands  involved  in  this  suit, 
and  its  construction  thereon  of  the  reservoir,  pipe  lines  and 
other  water  conduits  mentioned  in  the  complaint,  and  its 
subsequent  use  of  such  reservoir,  pipe  lines  and  water  conduits 
for  impounding,  storing  and  conveying  the  water  of  Beaver 
River  to  defendant's  power  house  where  it  is  used  for  the 
generation  of  electric  power,  constitute  an  acceptance  of  the 
grant  offered  by  the  aforesaid  Acts  of  Congress,  and  result  in 
vesting  in  defendant  good  title  to  the  right  of  way  or  deter- 
minable fee  granted  by  said  Acts  of  Congress? 

Question  No.  3. — Is  the  Act  of  Congress  entitled,  **An  Act 
Relating  to  Rights  of  Way  Through  Certain  Parks,  Reserva- 
tions, and  Other  Public  Lands",  approved  February  15,  1901, 
(31  U.  S.  Stat,  at  L.,  790)  to  be  construed  as  substantive 
legislation  superseding  and  by  implication  repealing  the  afore- 
said Acts  of  Congress? 


Question  No.  4. — Is  the  aforesaid  Act  of  February  15,  1901, 
(assuming  that  it  is  substantive  legislation  superseding  and 
by  implication  repealing  the  other  Acts  of  Congress  already 
mentioned)  unconstitutional  as  involving  an  unauthorized 
delegation,  to  executive  officers  of  the  United  States,  by 
Congress,  of  power  specifically  and  exclusively  conferred  by 
the  Constitution  upon  the  latter? 

Question  No.  5. — Is  the  aforesaid  Act  of  Congress  of 
February  15,  1901,  (assuming  that  it  is  substantive  legislation 
superseding  and  by  implication  repealing  the  other  aforesaid 
Acts  of  Congress  and  is  not  unconstitutional)  itself  super- 
seded and  repealed,  so  far  as  it  applies  to  rights  of  way  for 
reservoirs  and  aqueducts  appropriated  for  ''municipaV^  that 
is  to  say  public  or  governmental,  uses,  by  section  4  of  an  Act 
entitled,  "An  Act  Providing  for  the  Transfer  of  Forest 
Reserves  from  the  Department  of  the  Interior  to  the  Depart- 
ment of  Agriculture",  approved  February  1,  1905,  (33  U.  S. 
Stat,  at  L.,  628)  ? 

The  pertinent  parts  of  all  of  the  aforesaid  Acts  of  Congress 
and  certain  other  Acts  which  will  be  referred  to  in  the  course 
of  the  argument  will  be  found  printed  in  chronological  order 
in  the  appendix  at  the  end  of  this  brief. 


SPECIFICATION  OF  ERRORS. 

The  decree  appealed  from  is,  I  respectfully  submit,  erro- 
neous in  the  following  particulars,  viz : 

It  involves  a  decision  that  the  Acts  of  Congress  men- 
tioned in  question  no.  1  do  not  operate  as  a  grant  of 
a  right  of  way  over,  or  a  determinable  fee  in,  public  or 
forest  reserve  lands  for  the  construction,  maintenance 
and  use  of  reservoirs  and  canals  to  be  used  for  generating 
electric  power;  that  the  location,  appropriation  and  use 
of  public  or  forest  reserve  lands  for  a  reservoir  or  for 


6 

canals  for  the  generation  of  electric  power,  do  not,  by- 
virtue  of  the  aforesaid  Acts  of  Congress,  result  in  the 
acquisition  of  a  right  of  way  over  or  a  determinable  fee 
in  such  lands;  and,  consequently,  that  questions  nos.  1 
and  2,  supra,  should  be  answered  in  the  negative;  or  a 
decision  that  the  aforesaid  Act  of  February  15,  1901,  is 
to  be  construed  as  substantive  legislation  superseding  and 
by  implication  repealing  the  earlier  Acts  of  Congress 
above  mentioned,  is  not  unconstitutional,  and  is  not,  so 
far  as  it  relates  to  rights  of  way  for  reservoirs  and  canals 
appropriated  and  used  for  ''municipal'*  purposes,  super- 
seded or  repealed  by  section  4  of  the  aforesaid  Act  of 
February  1,  1905,  and,  consequently,  that  question  no.  3 
should  be  answered  in  the  affirmative,  and  questions  no. 
4  and  no.  5  in  the  negative. 


AEGUMENT. 

This  argument  will  be  confined  to  a  discussion  of  the  specific 
questions  already  stated  and  the  specific  errors  already  speci- 
fied, and  will  be  arranged  under  definite  propositions  which, 
in  my  opinion,  set  forth  the  true  legal  answers  to  the  aforesaid 
questions  and  compel  the  conclusion  that  the  decree  appealed 
from  is  erroneous  in  the  particulars  specified  and  should, 
therefore,  be  reversed. 

PROPOSITION  NO.  1. 

The  following  Acts  of  Congress,  viz: 

(a)  Sections  2339  and  2340  of  the  United  States  Re- 
vised Statutes; 

(h)  An  Act  entitled  ^^ An  Act  to  Provide  for  the  Sale 
of  Desert  Lands  in  Certain  States  and  Territories,"  ap- 
proved March  3,  1877,  (19  U.  S.  Stat,  at  L.  377) ; 


(c)  Sections  18  to  21  of  an  Act  entitled,  ''An  Act 
to  Repeal  Timber-Culture  Laws,  and  for  Other  Pur- 
poses,'' approved  March  3,  1891,  (26  U.  8.  Stat,  at  L. 
1095,  1101-3)  ; 

(d)  An  Act  entitled,  ''An  Act  Making  Appropri- 
ations for  Sundry  Civil  Expenses  of  the  Government  for 
the  Fiscal  Year  Ending  June  Thirtieth,  Eighteen  Hun- 
dred and  Ninety-eight,  and  for  Other  Purposes,"  ap- 
proved June  4,  1897,  (30  U.  S.  Stat,  at  L.  11,  34-36) ; 

(e)  Section  2  of  an  Act  entitled,  *'An  Act  to  Amend 
an  Act  to  permit  the  Use  of  the  Bight  of  Way  Through 
Public  Lands  for  Tramroads,  Canals,  and  Reservoirs 
and  for  Other  Purposes,*'  approved  May  11,  1898,  (30 
U.  S.  Stat,  at  L.  404)  ; 

operate  as  a  grant,  to  all  qualified  grantees  who  accept  the 
same  by  complying  with  the  terms  and  conditions  therein 
prescribed,  of  a  right  of  way  over  or  a  determinable  fee  in 
such  public  or  forest  reserve  lands  as  are  located,  appropri- 
ated and  actually  used  for  reservoirs,  canals  and  other  aque- 
ducts for  impounding,  storing,  diverting  and  conveying  water 
to  be  used  for  the  genei^ation  of  electric  power. 

The  general  legislation  of  Congress  concerning  the  right  to 
appropriate  water  and  rights  of  way  for  reservoirs  and  aque- 
ducts consisted,  prior  to  March  3,  1891,  of  section  9  of  the  Act 
approved  July  26,  1866  (14  U.  S.  Stat,  at  L.  251)  and  section 
17  of  the  Act  approved  July  9,  1870  (16  U.  S.  Stat,  at  L.  217) 
re-enacted  as,  and  superseded  by,  sections  2339  and  2340  of 
the  Revised  Statutes,  and  the  Act  approved  March  3,  1877 
(19  U.  S.  Stat.  atL.  377). 

By  these  Acts,  the  water  of  all  lakes,  rivers  and  other  sources 
of  water  supply  upon  the  public  lands  and  not  navigable  was 
declared  to  be  free  and  open  for  appropriation,  diversion  and 
use  wherever  appropriation  of  water  was  recognized  by  the 
local  customs,  laws  and  decisions  of  the  courts  as  a  means  of 
acquiring  the  right  to  use  the  water  so  appropriated  for  bene- 


8 

ficial  uses;  and  by  these  Acts  Congress  made  an  unequivocal 
grant  of  rights  of  way  for  the  construction,  maintenance  and 
use  of  reservoirs,  ditches  and  canals  as  a  means  of  enabling 
the  appropriators  of  water  to  impound  and  store,  and  to  dis- 
tribute and  put  to  beneficial  uses  the  water  lawfully  appropri- 
ated. This  statement  is  sufficiently  supported  by  the  follow- 
ing cases,  viz : 

Broder  v.  Natoma  Water  and  M.  Co.,  101  U.  S.  274; 

Farley  v.  Spring  Valley  Mining  and  Irrigating  Com- 
pany, 58  Cal.  142 ; 

DeNecochea  v.  Curtis,  80  Cal.  397,  399,  405; 

"Wood  V.  Etiwanda  Water  Company,  122  Cal.  152, 
157-8;  and 

Gutierres  v.  Albuquerque  Land  and  Irrigation  Co., 
188  U.  S.  545. 

In  construing  these  Acts  of  Congress  adopted  prior  to  March 
3,  1891,  no  distinction  has  ever  been  made  by  the  courts  of  any 
of  the  states  or  of  the  United  States  between  appropriators 
in  respect  to  the  use  to  which  they  devote  the  water  appro- 
priated by  them,  if  only  such  u^e  is  a  lawful  beneficial  use. 
In  support  of  this  statement  I  refer  to  the  following  authori- 
ties: 

Basey  v.  Gallagher,  20  Wall.  670 ; 

Cascade  Town  Co.  v.  Empire  W.  and  P.  Co.,  181  Fed. 

1011,  1016-8; 
Same  case  on  appeal,  205  Fed.  123,  128-9; 
Black's  Pomeroy  on  Water  Rights,  sec.  48 ; 
Farnham  on  Waters  and  Water  Eights,  sec.  668. 

Moreover,  if  the  construction  of  these  Acts  of  Congress  had 
not  already  been  settled  by  judicial  decisions,  there  would  be 
no  reasonable  ground  for  doubting  that  the  right  to  appro- 
priate water  **for  mining,  agricultural,  manufacturing,  and 
other  purposes"  includes  the  right  to  appropriate  water  to 
be  used  for  the  generation  of  electric  power,  as  the  electric 


9 

power  generated  by  means  of  such  water  is  itself  used  in  mani- 
fold ways  in  mining,  agricultural  and  manufacturing  opera- 
tions. From  time  immemorial  the  use  of  water  for  manufac- 
turing purposes  has  consisted  principally  of  its  utilization  in 
the  generation  of  power  for  the  operation  of  mills  and  machin- 
ery. The  power  of  falling  water  has  ever  been  received  upon 
water-wheels,  transmitted  by  means  of  shafts,  belts,  pulleys  and 
cogwheels,  which  in  turn  have  moved  machinery,  and  thus  used 
for  manufacturing  purposes.  Falling  water  used  by  means  of 
water-wheels  operating  dynamos  for  the  generation  of  elec- 
tric power  which  is  transmitted  by  means  of  wires  to  great 
distances  and  ultimately  utilized  for  operating  mills  and 
machinery  surely  is  used  for  manufacturing  purposes  just  as 
much  as  falling  water  whose  power  is  transmitted  by  the  older 
methods. 

That  the  use  of  appropriated  water  for  the  generation  of 
electric  power  is  not  only  a  beneficial  use,  but  also  a  use  for 
which  water  may  lawfully  be  appropriated  under  the  Acts  of 
Congress  hereinbefore  mentioned  and  the  laws,  customs  and 
judicial  decisions  of  the  states,  is  clearly  established  by  the  fol- 
lowing decisions,  viz: 

United  States  v.  Utah  Power  and  Light  Co.,  208  Fed. 

821; 
Same  case  on  appeal,  209  Fed.  554,  561; 
Cascade  Town  Company  v.  Empire  Water  and  Power 

Company,  181  Fed.  1011,  1016 ; 
Thompson  Co.  v.  Pennebaker,  173  Fed.  849,  853-4. 

The  decision  of  the  United  States  Circuit  Court  of  Appeals 
in  the  Eighth  Circuit  in  United  States  v.  Utah  Power  and 
Light  Company,  209  Fed.  554,  561  (which  reversed  the  decision 
of  the  District  Court  in  the  same  case  in  208  Fed.  821  upon 
another  point)  expressly  declares  that  "the  terms  of  the  orig- 
inal statute  (t.  e.,  the  Act  of  July  26,  1866)  are  broad  enough 
to  include  the  specific  form  of  manufacture  now  under  con- 
sideration*' (i.  e.,  the  generation  of  electric  power). 


10 

The  above  mentioned  Acts  of  Congress  constituted  the  entire 
body  of  the  general  statutes  of  the  United  States  upon  the  sub- 
ject of  the  appropriation  of  water  and  the  acquisition  of  rights 
of  way  for  reservoirs,  canals  and  ditches  by  private  citizens 
and  corporations  prior  to  the  enactment  of  the  Act  of  Congress 
entitled, '  *  An  Act  to  repeal  timber  culture  laws  and  for  other 
purposes,''  approved  March  3, 1891  (26  U.  S.  Stat,  at  L.  1095). 
This  Act  of  March  3,  1891,  is  important  here  because,  in  sec- 
tions 18  to  21,  it  supplements  the  earlier  legislation  granting 
rights  of  way  for  reservoirs  and  canals,  and  also  because,  in 
section  24,  it  confers  upon  the  President  of  the  United  States 
the  power  to  set  apart  and  reserve  the  vast  areas  of  land 
which  are  now  called  ''National  Forests."  The  earlier  Acts 
granting  rights  of  way  for  reservoirs  and  aqueducts  did  not 
expressly  mention  reservations  of  the  United  States  in  con- 
nection with  the  grant  of  authority  to  appropriate  water  and 
rights  of  way  for  reservoirs  and  canals,  or  define  the  extent 
or  limits  of  the  rights  of  way  thereby  granted,  or  contain  any 
provision  for  issuing  to  the  appropriators  any  muniment  or 
evidence  of  title  or  for  making  any  public  record  of  the  rights 
of  way  located  and  acquired  thereunder.  Remedying  these 
deficiencies  in  existing  legislation,  Congress,  in  sections  18 
and  19  of  said  Act  of  March  3,  1891,  granted  a  right  of  way 
of  a  definite  width  through  public  lands  and  reservations  of 
the  United  States  for  reservoirs  and  canals  to  any  canal  or 
ditch  company  formed  for  the  purpose  of  irrigation  which 
should  thereafter  file  with  the  Secretary  of  the  Interior  a  copy 
of  its  articles  of  incorporation  and  due  proofs  of  its  organiza- 
tion under  the  same,  and  made  provision  for  the  filing  and 
approving  of  maps  showing  the  location  of  the  rights  of  way 
thereby  granted  and  for  the  noting  of  the  location  of  such 
reservoirs  and  canals  upon  the  plats  of  the  surveys  of  public 
lands  of  the  United  States  in  the  land  office  for  the  District 
wherein  the  land  affected  by  the  rights  of  way  is  situated. 

It  should  be  noted  in  passing  that  it  is  expressly  provided 
in  section  18  of  the  Act  of  March  3,  1891,  that  "the  privilege 
herein  granted  shall  not  be  construed  to  interfere  with  the  con- 


11 

trol  of  water  for  irrigation  and  other  purposes  under  authority 
of  the  respective  States  or  Territories."  This  declaration  is 
a  recognition  by  Congress  of  the  right  of  the  several  states  to 
regulate  and  control  the  appropriation  and  use  of  water  for 
beneficial  purposes  and  is  substantially  equivalent  to  the 
acknowledgment  by  Congress  in  the  Act  of  July  26,  1866,  of 
the  legal  force  and  effect  of  the  local  customs,  laws  and  deci- 
sions of  the  courts  of  the  several  states  concerning  rights  to 
the  use  of  water. 

The  language  employed  in  sections  18  and  19  of  the  Act  of 
March  3, 1891,  to  grant  rights  of  way  for  reservoirs  and  canals 
and  to  define  the  terms  and  conditions  upon  which  the  grant 
is  made,  is  substantially  the  same  as  the  language  employed 
in  the  Railroad  Right  of  Way  Act  of  March  3,  1875  (18  U.  S. 
Stat,  at  L.  482),  a  copy  of  which  is  printed  at  the  end  of  the 
appendix  to  this  brief,  and  should,  therefore,  be  construed  in 
like  manner. 

De  Weese  v.  Henry  Investment  Co.,  39  L.  D.  27,  32-3. 

This  Court,  in  the  case  of 

Jamestown  and  Northern  Railroad  Company  v.  Jones, 
177  U.  S.  125, 
held  that  the  Railroad  Right  of  Way  Act  of  March  3,  1875, 
operates  as  a  direct  grant  of  a  right  of  way  over  the  public 
lands  which  may  be  accepted  by  actual  construction  of  a  rail- 
road without  the  filing  of  a  map  of  location  or  having  the  same 
approved  by  the  Secretary  of  the  Interior. 

This  Court,  in  Stalker  v.  Oregon  S.  L.  R.  Company,  225  U.  S. 
142,  146,  said  that  ''the  uniform  construction  of  this  Act  {i.  e., 
the  Railroad  Right  of  Way  Act)  has  been  that  it  is  a  grant 
*m  praesenti  of  lands  to  be  thereafter  identified.'  " 

Consequently,  and  for  the  same  reasons,  it  should  be  held 
here  that  said  Act  of  March  3,  1891,  is  a  grant  ''in  praesenti 
of  lands  to  be  thereafter  identified. ' ' 

The  grant  of  rights  of  way  for  reservoirs  and  canals  over 
public  lands  and  reservations  made  by  section  18  of  the  Act 


12 

of  March  3,  1891,  **to  any  canal  or  ditch  company  formed  for 
the  purpose  of  irrigation*'  is,  by  section  20  of  the  same  Act, 
extended  to  *' corporations,  individuals  or  association  of  indi- 
viduals'' and  made  applicable  "to  all  canals,  ditches  or  reser- 
voirs heretofore  or  hereafter  constructed." 

That  the  grantees  entitled  to  claim  the  benefit  of  the  rights 
and  privileges  granted  by  the  Act  of  March  3,  1891,  are  not 
limited  to  "canal  or  ditch  companies  formed  for  the  purpose 
of  irrigation"  has  been  expressly  decided  by  the  Supreme 
Court  of  the  Territory  of  New  Mexico  in  the  case  of  the  United 
States  V.  Lee,  110  Pac.  607  (see  second  paragraph  of  opinion 
on  page  609),  and  is  supported  by  the  opinion  of  Assistant 
Attorney- General  Campbell  in  33  L.  D.  563. 

That  the  grant  of  rights  of  way  made  by  the  Act  of  March  3, 
1891,  is  not  limited  to  eases  where  the  reservoirs  or  canals  are 
to  be  used  either  exclusively  or  chiefly  for  the  purpose  of  irri- 
gation, but,  on  the  contrary,  extends  to  and  includes  rights 
of  way  for  reservoirs  and  canals  for  storing  and  conveying 
water  for  any  lawful  beneficial  use  seems  equally  clear  from 
the  language  of  section  20. 

This  construction  of  the  Act  of  March  3,  1891,  is  entirely 
consistent  with  the  spirit  and  purpose  of  all  of  the  earlier 
Acts  of  Congress  upon  this  subject  which,  as  we  have  seen, 
freely  grant  the  right  to  appropriate  water  and  necessary 
rights  of  way  without  making  any  distinction  between  the  vari- 
ous beneficial  uses  to  which,  under  state  laws,  the  water  may 
be  applied,  and  furthermore  is  the  only  construction  consistent 
with  the  declaration  contained  in  the  last  clause  of  section  18 
to  the  effect  that  the  privilege  therein  granted  shall  not  be  con- 
strued "to  interfere  with  the  control  of  water  for  irrigation 
and  other  purposes  under  authority  of  the  respective  states 
or  territories." 

There  is,  however,  a  series  of  rulings  by  the  Secretary  of 
the  Interior  to  the  effect  that  rights  of  way  for  reservoirs  and 
canals  are  granted  by  the  Act  of  March  3,  1891,  only  for  the 
purpose  of  irrigation  and  may  not  be  acquired  or  used  iinder 


13 

that  Act  for  any  other  purpose.  These  rulings  appear  to  be 
based  upon  the  fact  that,  in  the  granting  clause  contained  in 
section  18  of  this  Act,  the  grantee  is  described  as  ''any  canal 
or  ditch  company  formed  for  the  purpose  of  irrigation." 

That  these  rulings  are  erroneous  appears  from  the  following 
considerations:  (1)  Nowhere  in  this  Act  is  it  expressly  stated 
that  the  rights  of  way  thereby  granted  are  to  be  used  for  the 
purpose  of  irrigation  to  the  exclusion  of  other  beneficial  uses ; 
(2)  if  the  rights  of  way  for  reservoirs  and  canals  granted  by 
section  18  are  to  be  used  solely  for  the  purpose  of  irrigation 
because  the  grantee  is  therein  described  as  ' '  any  canal  or  ditch 
company  formed  for  the  purpose  of  irrigation,"  then  it  must 
be  that  rights  of  way  granted  by  section  18  as  supplemented 
by  section  20  may  be  used  for  any  purpose  for  which  water 
may  be  lawfully  appropriated,  distributed  and  sold  or  used, 
because  section  20  enlarges  the  class  of  grantees  so  as  to  make 
it  include  ''corporations,  individuals  or  association  of  indi- 
viduals" generally  and  without  any  qualification  or  limita- 
tion and  makes  the  provisions  of  the  Act  applicable  to  "all 
canals,  ditches  or  reservoirs,"  and  because  the  corporations, 
natural  persons  and  associations  included  in  the  enlarged 
class  of  grantees  provided  for  in  section  20  possess,  imder  the 
laws  of  the  United  States  and  the  several  states,  the  right  to 
engage  in  and  conduct  the  business  of  appropriating,  storing, 
distributing  and  selling  water  to  the  public  and  the  right  to 
appropriate  and  use  water  for  every  purpose  for  which  water 
may  be  beneficially  used;  (3)  no  reason  has  been  suggested 
or  occurs  why  Congress  in  1891  should  abandon  the  policy 
expressed  in  its  previous  legislation  and  grant  rights  of  way 
for  reservoirs  and  canals  to  be  used  for  the  sole  purpose  of 
irrigation  upon  any  more  favorable  terms  than  for  other  lawful 
beneficial  uses;  (4)  as  the  Act  of  March  3,  1891,  neither 
expressly  nor  by  implication,  repeals  the  earlier  Acts  relating 
to  the  appropriation  of  water  and  the  grant  of  rights  of  way 
for  reservoirs  and  canals,  and  as  under  such  earlier  Acts  any 
corporation  or  natural  person  had  the  right  to  appropriate 


14 

water  and  rights  of  way  for  reservoirs  and  canals  upon  the 
public  lands  of  the  United  States  for  any  and  every  beneficial 
use,  and  as  sections  18  to  21  of  the  Act  of  March  3,  1891,  are 
clearly  remedial  in  their  nature  and  intended  to  supply  cer- 
tain defects  in  the  earlier  legislation  upon  the  subject,  section 

20  as  well  as  the  other  sections  should  be  liberally  construed 
so  as  to  give  effect  to  the  intent  of  Congress  and  to  enable  all 
corporations  and  natural  persons  to  avail  themselves  of  the 
benefits  and  privileges  granted  by  the  provisions  of  this  Act ; 
and  (5)  if  the  declaration  contained  in  the  first  clause  of  sec- 
tion 20,  ''that  the  provisions  of  this  Act  shall  apply  to  all 
canals,  ditches  or  reservoirs  heretofore  or  hereafter  construct- 
ed, whether  constructed  by  corporations,  individuals  or  associa- 
tion of  individuals, ' '  is  not  to  be  construed  as  here  indicated,  it 
is  difficult  to  conceive  of  any  rational  meaning  to  be  attributed 
to  it,  and  yet  settled  rules  of  construction  require  that  effect 
shall,  if  possible,  be  given  to  every  part  of  an  Act  of  Congress. 

Moreover  the  intent  of  Congress  in  enacting  sections  18  to 

21  of  the  Act  of  March  3,  1891,  is  reflexively  illustrated  by  the 
Acts  of  June  4,  1897  (30  U.  S.  Stat,  at  L.  34-36)  and  May  11, 
1898  (30  U.  S.  Stat,  at  L.  404)  which  supplement  and  amend 
said  Act  of  March  3,  1891,  and  make  it  clear  that  Congress 
did  not  intend  the  benefits  of  the  former  Act  to  be  availed  of 
by  irrigation  companies  alone. 

The  Act  of  June  4,  1897,  which  prescribes  how  and  for 
what  purposes  public  lands  theretofore  or  thereafter  set  aside 
and  reserved  by  the  President  under  the  authority  conferred 
by  section  24  of  the  Act  of  March  3,  1891,  as  public  forest  res- 
ervations, shall  be  controlled  and  administered,  expressly  pro- 
vides that  nothing  therein  contained  shall  * '  prohibit  any  per- 
son from  entering  upon  such  forest  reservations  for  all  proper 
and  lawful  purposes,  including  that  of  prospecting,  locating 
and  developing  the  mineral  resources  thereof,''  and  further 
that  "all  waters  on  such  reservations  may  be  used  for  domes- 
tic, mining,  milling  or  irrigation  purposes,  under  the  laws  of 
the  state  wherein  such  forest  reservations  are  situated,  or  under 


15 


the  laws  of  the  United  States  and  the  rules  and  regulations 
established  thereunder.  * ' 

The  express  grant  made  by  the  Act  of  June  4,  1897,  of  the 
right  to  enter  upon  such  reservations  for  all  lawful  purposes 
and  to  appropriate  all  waters  thereon  **for  domestic,  mining, 
milling  or  irrigation  purposes*'  includes,  by  necessary  impli- 
cation, a  grant  of  all  rights  of  way  for  reservoirs  and  aque- 
ducts, which  may  be  reasonably  necessary  and  proper  for  the 
appropriation,  distribution  and  use  of  such  water.  For  the 
grant  of  water,  timber  or  any  other  thing  which  is  a  part  of 
the  land,  carries  with  it  by  implication  as  against  the  grantor 
such  easements  and  servitudes  affecting  his  land  as  are  reason- 
ably necessary  and  proper  to  enable  the  grantee  to  obtain  and 
use  the  thing  granted.    See 

Hathorn  v.  Stinson,  10  Maine  224,  25  Am.  Dec.  228, 
232; 

Prescott  V.  White,  21  Pick.  341,  32  Am.  Dec.  266,  268 ; 

Pine  Tree  Lumber  Co.  v.  McKinley  et  al.,  83  Minn. 
419,  86N.  W.  414; 

Werling  v.  IngersoU,  181  U.  S.  131,  141. 

But  it  is  not  necessary  to  rely  upon  such  implication  alone, 
because  the  clause  of  this  Act  of  June  4,  1897,  which  grants 
the  right  to  use,  for  domestic,  mining,  milling  or  irrigation 
purposes,  all  waters  on  forest  reservations,  expressly  provides 
that  such  waters  may  be  used  ''under  the  laws  of  the  United 
States  and  the  rules  and  regulations  established  thereunder.'* 
The  ' '  laws  of  the  United  States ' '  thus  referred  to  and  thereby 
(under  the  rule  declared  in  re  Heath,  144  U.  S.  92)  incorpor- 
ated in  this  Act  must  be  sections  2339  and  2340  of  the  United 
States  Revised  Statutes,  the  aforesaid  Act  of  March  3,  1877, 
and  the  aforesaid  Act  of  March  3,  1891,  because  these  were 
the  only  general  laws  of  the  United  States  then  in  force 
relating  to  the  appropriation  of  water  and  the  appropriation 
and  acquisition  of  rights  of  way  for  reservoirs  and  canals  upon 


16 

the  public  domain,  except  an  Act  approved  January  21,  1895 
(28  U.  S.  Stat,  at  L.  635)  which,  by  its  terms,  was  limited  to 
citizens  engaged  in  the  business  of  mining,  quarrying  or  lum- 
bering and  to  lands  not  within  any  park,  forest,  military  or 
Indian  reservation,  and  except  an  Act  approved  February  26, 

1897,  (29  U.  S.  Stat,  at  L.  599)  which  declares  that  reservoir 
sites  reserved  or  to  be  reserved  shall  be  open  to  use  and  occu- 
pation under  said  Act  of  March  3,  1891,  and  that  any  state 
may  occupy  such  sites  to  the  same  extent  as  an  individual  or 
private  corporation.  This  clause  of  the  Act  of  June  4,  1897, 
construed  as  it  must  be  in  connection  with  'Hhe  laws  of  the 
United  States"  therein  referred  to,  authorizes  not  only  the 
appropriation  of  all  non-navigable  waters  upon  the  forest 
reservations,  but  also  the  appropriation  and  use  of  all  neces- 
sary rights  of  way  for  reservoirs  and  canals  in  accordance  with 
the  laws  of  the  several  states  and  the  aforesaid  laws  of  the 
United  States  then  existing. 

In  passing,  I  desire  to  call  the  Court's  attention  to  the  fact 
that  the  term  *' milling"  as  used  in  the  sentence  quoted  above 
from  the  Act  of  June  4,  1897,  is  undoubtedly  the  equivalent 
of  the  term  ''manufacturing"  used  in  section  9  of  the  Act  of 
July  26,  1866,  and  section  2339  of  the  United  States  Revised 
Statutes,  which,  as  I  have  already  shown,  includes  the  genera- 
tion or  manufacture  of  electric  power.  That  the  terms  ''mill- 
ing" and  "manufacturing"  are  substantially  equivalent  and 
include  the  generation  of  electric  power  is  supported  by  the 
following  authorities : 

Lambom  v.  Bell,  18  Colo.  346,  32  Pac.  989,  990-1 ; 
Denver  Power  and  Irrigation  Co.  v.  Denver  &  R.  G.  R. 

Co.,  30  Colo.  204,  69  Pac.  568,  569 ; 
Lucas  V.  Ashland  Light,  M.  &  P.  Co.,  92  Neb.  550,  138 

N.  W.  761,  763. 

The  second  section  of  the  Act  of  Congress  approved  May  11, 

1898,  provides  "that  the  rights  of  way  for  ditches,  canals,  or 
reservoirs  heretofore  or  hereafter  approved  under  the  pro- 


17 

visions  of  sections  eighteen,  nineteen,  twenty  and  twenty-one 
of  the  Act  entitled  *  An  Act  to  repeal  timber-culture  laws,  and 
for  other  purposes,'  approved  March  third,  eighteen  hundred 
and  ninety-one,  may  be  used  for  purposes  of  a  public  nature ; 
and  said  rights  of  way  may  be  used  for  purposes  of  water 
transportation,  for  domestic  purposes,  or  for  the  development 
of  power,  as  subsidiary  to  the  main  purpose  of  irrigation.'* 

By  this  section  of  the  Act  of  May  11,  1898,  Congress  not 
only  recognizes  the  existence  of  rights  of  way  for  reservoirs 
and  canals  acquired  and  to  be  acquired  under  the  provisions 
of  section  20  as  well  as  under  the  provisions  of  section  18  of 
the  Act  of  March  3,  1891,  but  also  provides  that  rights  of  way 
granted  under  the  provisions  of  sections  18,  19,  20  and  21  of 
the  Act  of  March  3,  1891,  ''may  be  used  for  purposes  of  a 
public  nature"  without  any  qualification  or  limitation,  and 
also  for  certain  other  purposes  including  ''the  development 
of  power,  as  subsidiary  to  the  main  purpose  of  irrigation." 

If,  therefore,  the  generation  of  electric  power  for  distribu- 
tion and  sale  to  the  public  is  a  public  use  so  that  rights  of 
way  and  water  rights  used  for  that  purpose  are  actually  used 
for  a  purpose  of  a  public  nature,  then  section  2  of  the  Act  of 
May  11,  1898,  affords  express  authority  for  the  use  of  rights 
of  way  for  reservoirs  and  canals  granted  by  the  Act  of  March 
3,  1891,  for  the  generation  of  electric  power  for  distribution 
and  sale  to  the  public.  This  is  the  purpose  for  which  defend- 
ant is  using  the  rights  of  way  involved  in  this  action. 

That  the  generation  of  electric  power  for  distribution  and 
sale  to  the  public  is  a  public  use  is  a  proposition  fully  sup- 
ported by  the  following  cases : 

Mt.  Vernon-Woodberry  Cotton  Duck  Co.  v.  Alabama 

Interstate  Power  Co.,  240  U.  S.,  30; 
Walker  v.  Shasta  Power  Company,  160  Fed.,  856. 

If  it  is  contended  on  behalf  of  the  plaintiff  that  the  reference 
in  the  second  clause  of  section  2  of  the  Act  of  May  11,  1898, 
to  the  "development  of  power  as  subsidiary  to  the  main  pur- 
pose of  irrigation ' '  should  be  deemed  to  exclude  the  generation 


18 

of  electric  power  from  the  purposes  of  a  public  nature  men- 
tioned in  the  first  clause  of  this  section,  then  the  answer  is 
that,  while  the  use  of  rights  of  way  for  reservoirs  and  canals 
for  the  generation  of  electric  power  for  distribution  and  sale 
to  the  public  is  a  public  use,  the  generation  of  electric  power 
for  the  private  or  individual  use  of  the  owner  thereof,  whether 
for  mining,  manufacturing  or  other  industrial  purposes,  is 
a  private  use;  that  the  reference  in  this  section  to  the  ''devel- 
opment of  power  as  subsidiary  to  the  main  purpose  of  irri- 
gation" contemplates  the  development  of  power  for  the  private 
or  individual  use  of  the  owner  of  the  right  of  way  as  dis- 
tinguished from  the  development  of  electric  power  for  dis- 
tribution and  sale  to  the  public;  and  that  this  construction 
gives  full  effect  to  both  clauses  of  this  section,  while  the  plain- 
tiff's construction  makes  the  second  clause  destructive  in  part 
of  the  authority  granted  by  the  first  clause. 

The  distinction  here  made  between  public  and  private  uses 
of  hydro-electric  power  plants  and  rights  of  way  acquired  for 
use  in  connection  therewith  has  often  been  recognized  in  cases 
involving  the  appropriation,  distribution  and  use  of  water. 
See: 

Hildreth  v.  Montecito  Creek  Water  Co.,  139  Cal.,  22, 

28-30; 
Thayer  v.  California  D.  Co.,  164  Cal.,  117,  125-131. 

It  should  be  noted  that  the  term  ''right  of  way''  as  used 
in  the  aforesaid  Acts  of  Congress  and  particularly  as  used 
in  said  Act  of  March  3,  1891,  signifies,  not  merely  an  easement 
in  the  land  surveyed,  located  and  appropriated  as  a  reservoir 
site  or  right  of  way  for  a  ditch  or  canal,  but  rather  the  land 
itself  appropriated  for  such  purposes;  and  that  the  grant 
made  by  these  Acts  is  really  of  a  limited  or  determinable  estate 
in  fee,  that  is  to  say,  an  estate  in  fee  to  be  held  and  owned 
by  the  grantee,  its  successors  and  assigns,  so  long  as  such 
land  shall  be  used  for  the  purpose  for  which  it  was  granted, 
subject  to  the  implied  condition  that  the  same  shall  revert  to 
the  United  States  if  and  whenever  the  grantee  thereof  shall 


19 

cease  to  use  the  same  for  that  purpose.  This  interpretation 
of  the  term  ''right  of  way'*  as  used  in  these  Acts  and  of  the 
grant  made  by  said  Acts  is  supported  by  the  decisions  of 
this  Court  in  the  following  cases,  which  involve  the  interpre- 
tation of  grants  of  rights  of  way  to  corporations  for  railroad 
purposes : 

Northern  Pacific  Ky.  Co.  v.  Townsend,  190  U.  S.,  267 ; 

New  Mexico  v.  United  States  Trust  Company,  172 
U.  S.,  171; 

Rio  Grande  Western  Ry.  Co.  v.  Stringham,  239  U.  S.  44. 

No  condition  precedent  is  attached  to  the  grant  of  rights 
of  way  made  by  any  of  the  aforesaid  Acts  except  the  condition 
prescribed  by  section  18  of  the  Act  of  March  3,  1891,  ''that 
no  such  right  of  way  shall  be  so  located  as  to  interfere  with 
the  proper  occupation  by  the  Government  of  any  such  reser- 
vation.*' This  condition  has  been  correctly  construed  by  the 
Secretary  of  the  Interior,  in  the  case  of  Rio  Verde  Canal 
Company,  27  L.  D.,  421,  423,  as  requiring  that  rights  of  way 
for  reservoirs  and  canals  granted  by  the  Act  of  March  3,  1891, 
must  be  so  located  as  not  to  interfere  with  the  use  of  the  reser- 
vations affected  thereby  for  the  purposes  for  which  such  reser- 
vations were  created.  The  purposes  for  which  forest  reserva- 
tions may  be  lawfully  established  are,  as  declared  in  the  Act 
of  June  4,  1897,  to  improve  and  protect  the  forest  within 
the  reservations,  to  secure  favorable  conditions  of  water  flow 
and  to  furnish  a  continuous  supply  of  timber  for  the  citizens 
of  the  United  States. 

There  is  nothing  in  the  record  in  this  case  that  will  support 
an  inference  that  defendant's  reservoir,  pipe  lines  and  water 
conduits  have  been  located  in  such  a  way  as  to  interfere  with 
the  proper  occupation  by  the  Government  of  the  Fillmore 
National  Forest;  but,  on  the  contrary,  from  the  positive 
allegation  contained  in  paragraph  IV  of  plaintiff's  complaint 
(transcript  page  4)  to  the  effect  that  defendant  has  been 
accorded  the  fullest  opportunity  to  comply  with  the  Acts  of 
Congress  and  the  regulations  of  the  Secretary  of  Agriculture 


20 

and  *' thereby  to  obtain  from  the  plaintiff  permission  to  main- 
tain and  operate  said  power  house,  pipe  lines  or  conduit, 
transmission  lines,  reservoir ' '  and  the  buildings  and  structures 
composing  its  hydro-electric  works,  the  absence  of  any  allega- 
tion charging  that  defendant's  reservoir,  pipe  lines  and  water 
conduits  interfere  with  the  proper  occupation  by  the  Gov- 
ernment of  said  National  Forest  and  the  fact  that  plaintiff, 
in  the  prayer  of  its  complaint  (transcript  page  6),  instead 
of  asking  for  an  absolute  injunction,  prays  that  defendant 
*'be  enjoined  from  further  operating  said  works  without  the 
permission  of  the  plaintiff,"  it  is  to  be  inferred  that  defend- 
ant's reservoir  and  aqueducts  have  in  fact  been  so  located 
as  not  to  interfere  with  the  proper  occupation  by  the  Govern- 
ment of  said  National  Forest. 

To  sum  up  this  branch  of  the  argument  I  submit  that  the 
following  propositions  have  been  fully  established : 

(a)  Congress  has  by  the  Acts  already  mentioned, 
clearly  and  unequivocally  granted  to  defendant,  and 
to  all  others  in  like  situation,  as  against  the  United 
States  in  its  capacity  as  riparian  proprietor,  the  right 
to  appropriate  and  take  the  water  of  all  non-navigable 
lakes,  rivers  and  streams  upon  public  lands  and  forest 
reservations  of  the  United  States  for  agricultural, 
mining,  manufacturing,  domestic,  municipal  and  other 
beneficial  uses  including  the  generation  of  electric 
power;  and 

(b)  Congress  has  also  by  said  Acts  granted  to  de- 
fendant, and  to  all  others  in  like  situation,  the  right 
to  locate,  appropriate  and  acquire  rights  of  way  for 
reservoirs,  canals  and  ditches,  through  the  public  lands 
and  reservations  of  the  United  States  to  be  used  for  im- 
pounding, storing  and  conveying  water  for  all  beneficial 
uses  including  the  generation  of  electric  power,  subject 
only  to  the  condition  provided  for  in  said  Act  of  March 

I  3,  1891,  that  such  rights  of  way  shall  be  so  located  as 

not  to  interfere  with  the  proper  occupation  by  the  Gov- 
ernment of  any  such  reservation. 


21 

PROPOSITION  NO.  2. 

Defendant's  location  and  appropriation  of  the  public  or 
forest  reserve  lands  involved  in  this  suit,  and  its  construction 
thereon  of  the  reservoir,  pipe  lines  and  other  water  conduits 
mentioned  in  the  complaint,  and  its  subsequent  use  of  such 
reservoir,  pipe  lines  and  water  conduits  for  impounding,  stor- 
ing, and  conveying  the  water  of  Beaver  River  to  defendant's 
power  house  where  it  is  used  for  the  generation  of  el&ctric 
power,  constituted  an  acceptance  of  the  grant  offered  by  the 
aforesaid  Acts  of  Congress,  and  resulted  in  vesting  in  d&- 
fendant  good  title  to  the  right  of  way  or  determinable  fee 
granted  by  said  Acts  of  Congress. 

As  stated  on  page  11,  supra,  the  language  employed  in 
sections  18  and  19  of  the  aforesaid  Act  of  March  3,  1891,  to 
grant  rights  of  way  for  reservoirs  and  canals  and  to  define 
the  terms  and  conditions  upon  which  such  rights  of  way  are 
granted,  is  substantially  the  same  as  the  language  employed 
in  the  Railroad  Right  of  Way  Act  of  March  3,  1875.  Conse- 
quentlj^  the  decision  of  this  Court  in  Jamestown  and  Northern 
Railroad  Company  v.  Jones,  there  cited,  wherein  it  is  held 
that  the  grant  made  by  said  Railroad  Right  of  Way  Act  may 
be  accepted  by  actual  construction  of  a  railroad  without  filing, 
or  obtaining  the  Secretary  of  the  Interior's  approval  of,  a 
map  of  location,  is  sufficient  authority  to  support  Proposition 
No.  2,  if  that  proposition  depended  solely  upon  said  Act  of 
March  3,  1891. 

This  construction  of  the  said  Act  of  March  3,  1891,  is  also 
directly  sustained  by  the  decision  of  the  Supreme  Court  of 
New  Mexico,  rendered  August  10,  1910,  in  United  States  v. 
Lee,  15  N.  M.  382,  110  Pac,  607,  wherein  it  was  held  that  the 
defendant,  under  the  provisions  of  the  Act  of  March  3,  1891, 
had  the  right  to  locate  and  construct,  and  thereby  to  acquire 
a  right  of  way  for,  a  canal  over  unsurveyed  public  lands  of 
the  United  States  to  be  used  for  the  purpose  of  conveying 
water  for  irrigation,  without  filing  a  map  of  location  and  ob- 
taining the  approval  thereof  by  the  Secretary  of  the  Interior 


22 

or  obtaining  a  permit  under  the  aforesaid  Act  of  February  15, 
1901. 

Section  2  of  the  aforesaid  Act  of  May  11,  1898,  which 
expressly  provides  that  rights  of  way  for  reservoirs  and  canals 
approved  under  the  provisions  of  said  Act  of  March  3,  1891, 
**may  be  used  for  purposes  of  a  public  nature,"  adds  nothing 
to  the  requirements  oisaid  Act  of  March  3, 1891. 

Sections  2339  and  2340  of  the  United  States  Revised  Stat- 
utes and  the  Desert  Land  Act  of  March  3,  1877,  do  not,  either 
expressly  or  by  implication,  require  any  person  desiring  to 
avail  himself  of  the  grant  thereby  made  of  the  right  to  appro- 
priate water  from  non-navigable  streams  on  the  public  lands 
and  rights  of  way  for  reservoirs  and  canals  required  to  effect 
the  appropriation  of  such  water  to  file  any  application  with 
any  officer  of  the  Government,  or  obtain  any  permit,  patent 
or  other  evidence  of  such  grant;  but,  on  the  contrary,  under 
said  Acts,  water  rights  and  rights  of  way  for  canals  and  res- 
ervoirs become  vested  and  accrued  by  actual  appropriation 
and  use.  .■.  ,  • 

Lincoln  County  Water  etc.  Co.  v.  Big  Sandy  Reservoir 

Co.,  32  L.  D.  463; 
Santa  Fe  Pac.  R.  R.  Co.,  29  L.  D.  213. 

The  Act  of  June  4,  1897,  after  providing  that  ''no  public 
forest  reservation  shall  be  established,  except  to  improve  and 
protect  the  forest  within  the  reservation,  or  for  the  purpose 
of  securing  favorable  conditions  of  water  flows  and  to  fur- 
nish a  continuous  supply  of  timber  for  the  use  and  necessities 
of  citizens  of  the  United  States,"  confers  upon  the  Secre- 
tary of  the  Interior  the  authority  to  make  provision  for  the 
protection  of  the  forest  reservations  from  fire  and  depreda- 
tions and  to  make  ''such  rules  and  regulations  and  establish 
such  service  as  will  insure  the  objects  of  such  reservations, 
namely,  to  regulate  their  occupancy  and  use  and  to  preserve 
the  forests  thereon  from  destruction." 

But  the  Act  of  June  4,  1897,  also  provides  that  nothing 
therein  contained  shall  *' prohibit  any  person  from  entering 


23 

upon  such  forest  reservations  for  all  proper  and  lawful  pur- 
poses," and  that  ''all  waters  on  such  reservations  may  be 
used  for  domestic,  mining,  milling  or  irrigation  purposes, 
under  the  laws  of  the  State  wherein  such  forest  reservations 
are  situated,  or  under  the  laws  of  the  United  States  and  the 
rules  and  regulations  established  thereunder." 

The  Act  of  June  4,  1897,  does  not,  either  expressly  or  by 
implication,  repeal  any  part  of  any  of  the  earlier  Acts  of 
Congress  relating  to  water  rights  or  rights  of  way  for  reser- 
voirs and  canals,  but,  on  the  contrary,  in  the  clause  last 
quoted,  expressly  authorizes  the  use  of  water  on  the  forest 
reservations,  "under"  (i- e.,  in  accordance  with)  "the  laws 
of  the  United  States."  That  the  "laws  of  the  United  States" 
thus  referred  to  are  the  Acts  of  Congress  hereinbefore  con- 
sidered, is  clear,  because  said  Acts  of  Congress  are  the  only 
general  laws  of  the  United  States  that  were  then  in  existence 
relating  to  the  appropriation  of  water  on  the  public  lands  and 
reservations  except  the  Acts  of  January  21,  1895,  and  Feb- 
ruary 26,  1897,  mentioned  on  page  16,  supra.  That  such  a 
reference  in  one  statute  to  other  statutes  incorporates  in  the 
former  the  provisions  of  the  latter  is  well  settled.     See: 

In  re  Heath,  144,  U.  S.,  92; 

Lewis'  Sutherland  on  Statutory  Construction,  2nd  ed., 
sec.  405. 

The  Act  of  June  4,  1897,  must,  therefore,  be  so  construed 
as  to  give  full  effect,  not  only  to  all  of  its  own  provisions,  but 
also  to  all  of  the  provisions  of  the  aforesaid  earlier  Acts  incor- 
porated therein  by  reference,  in  accordance  with  the  rules 
of  construction  declared  by  this  Court  in  the  case  of 
Kohlsaat  v.  Murphy,  96  U.  S.,  153 ; 

as  follows,  viz: 

"In  the  exposition  of  statutes,  the  established  rule 
is  that  the  intention  of  the  law-maker  is  to  be  deduced 
from  a  view  of  the  whole  statute,  and  every  material 
part  of  the  same;  and  where  there  are  several  statutes 
relating  to  the  same  subject,  they  are  all  to  be  taken 


u 

together,  and  one  part  compared  with  another  in  the 
construction  of  any  one  of  the  material  provisions, 
because,  in  the  absence  of  contradictory  or  inconsistent 
provisions,  they  are  supposed  to  have  the  same  object 
and  as  pertaining  to  the  same  system.  Resort  may  be 
had  to  every  part  of  a  statute,  or,  where  there  is  more 
than  one  in  pari  materia,  to  the  whole  system,  for  the 
purpose  of  collecting  the  legislative  intention,  which  is 
the  important  inquiry  in  all  cases  where  provisions  are 
ambiguous  or  inconsistent. ' ' 

It  is  settled  by  well  considered  decisions  of  this  Court  that 
the  power  granted  to  an  executive  officer  of  the  Government 
to  administer  and  execute  an  Act  of  Congress  and  to  adopt 
regulations  for  the  purpose  of  carrying  the  same  into  effect 
does  not  authorize  him  to  make  or  enforce  regulations  incon- 
sistent with  such  Act  of  Congress  or  destructive  of  any  right 
thereby  granted.    See: 

Morrill  v.  Jones,  106  U.  S.,  466 ; 

United  States  v.  Eaton,  144  U.  S.,  677,  687 ; 

"Williamson  v.  United  States,  207  U.  S.,  425,  462. 

Consequently  the  power  granted  to  the  Secretary  of  the 
Interior  by  the  Act  of  June  4,  1897,  to  make  and  enforce 
regulations  concerning  the  use  and  occupancy  of  forest  reser- 
vations, does  not  authorize  the  adoption  or  enforcement  of 
any  regulation — 

(a)  Prohibiting  any  person  from  appropriating  and 
using  for  any  lawful  purpose  the  water  of  non-navigable 
lakes  and  streams  within  any  forest  reservation; 

(b)  Prohibiting  the  location  and  construction  of  reser- 
voirs or  canals  in  any  such  reservation,  provided  they  be 
so  located  as  not  to  interfere  with  the  purpose  for  which 
such  reservation  is  created; 

(c)  Reserving  to  the  Secretary  of  the  Interior  the 
right,  in  his  discretion,  to  permit  or  to  refuse  to  permit 
any  person  to  survey,  locate,  appropriate  and  use  such 


25 

reservoir  and  canal  rights  of  way  as  may  be  either  neces- 
sary or  proper  for  the  appropriation  and  use  of  water 
within  any  such  forest  reservation; 

(d)  Requiring  any  person  desiring  to  avail  himself  of 
the  grants  made  by  the  aforesaid  Acts  of  Congress  to  file 
a  map  of  location  of  the  desired  right  of  way  and  obtain 
the  Secretary's  approval  thereof  before  constructing  his 
proposed  reservoir  or  canal;  or 

(e)  Requiring  any  such  person  to  enter  into  any  stip- 
ulation or  contract  or  to  make  any  payment  not  required 
or  authorized  by  said  Acts. 

Hence  it  follows  that  defendant,  having  actually  appro- 
priated and  put  to  beneficial  use  of  a  public  nature  the  waters 
of  Beaver  River,  and  having  actually  constructed  and  used, 
for  the  purpose  of  impounding,  storing,  and  conveying  such 
water,  its  reservoir,  pipe  lines  and  conduits,  has  acquired  a 
right  of  way  over,  or  determinable  estate  in  fee  in,  the  lands 
occupied  by  said  reservoir  and  said  pipe  lines  and  conduits, 
unless  the  aforesaid  Acts  have  been  superseded  or  repealed  by 
the  aforesaid  Act  of  February  15,  1901. 

PROPOSITION  NO.  3. 

The  Act  of  Congress  entitled  ''An  Act  Relating  to  Rights  of 
Way  Through  Certain  Parks,  Reservations,  and  Other  Public 
Lands,''  approved  February  15,  1901,  {31  U.  8.  Stat,  at  L. 
790)  is  not  to  be  construed  as  substantive  legislation  supersed- 
ing and  by  implication  repealing  the  aforesaid  Acts  of  Con- 
gress. 

The  Act  of  February  15,  1901  (31  U.  S.  Stat,  at  L.,  790), 
provides  as  follows : 

''That  the  Secretary  of  the  Interior  be,  and  hereby  is, 
authorized  and  empowered,  under  general  regulations 
to  be  fixed  by  him,  to  permit  the  use  of  rights  of  way 
through  the  public  lands,  forest  and  other  reservations 


26 

of  the  United  States,  and  the  Yosemite,  Sequoia,  and 
General  Grant  national  parks,  California,  for  electrical 
plants,  poles,  and  lines  for  the  generation  and  distribu- 
tion of  electrical  power,  and  for  telephone  and  tele- 
graph purposes,  and  for  canals,  ditches,  pipes  and  pipe 
lines,  flumes,  tunnels,  or  other  water  conduits,  and  for 
water  plants,  dams,  and  reservoirs  used  to  promote 
irrigation  or  mining  or  quarrying,  or  the  manufactur- 
ing or  cutting  of  timber  or  lumber,  or  the  supplying 
of  water  for  domestic,  public,  or  any  other  beneficial 
uses  to  the  extent  of  the  ground  occupied  by  such  canals, 
ditches,  flumes,  tunnels,  reservoirs,  or  other  water  con- 
duits or  water  plants,  or  electrical  or  other  works  per- 
mitted hereunder,  and  not  to  exceed  fifty  feet  on  each 
side  of  the  marginal  limits  thereof,  or  not  to  exceed 
fifty  feet  on  each  side  of  the  center  line  of  such  pipes 
and  pipe  lines,  electrical,  telegraph,  and  telephone  lines 
and  poles,  by  any  citizen,  association,  or  corporation  of 
the  United  States,  where  it  is  intended  by  such  to 
exercise  the  use  permitted  hereunder  or  any  one  or 
more  of  the  purposes  herein  named:  Provided,  That 
such  permits  shall  be  allowed  within  or  through  any 
of  said  parks  or  any  forest,  military,  Indian,  or  other 
reservation  only  upon  the  approval  of  the  chief  officer 
of  the  Department  under  whose  supervision  such  park 
or  reservation  falls  and  upon  a  finding  by  him  that  the 
same  is  not  incompatible  with  the  public  interest: 
*  *  *  And  provided  further,  That  any  permission 
given  by  the  Secretary  of  the  Interior  under  the  pro- 
visions of  this  Act  may  be  revoked  by  him  or  his  suc- 
cessor in  his  discretion,  and  shall  not  be  held  to  confer 
any  right,  or  easement,  or  interest  in,  to,  or  over  any 
public  land,  reservation,  or  park/' 

The  authority  to  execute  this  Act  of  February  15,  1901,  so 
far  as  it  applies  to  forest  reservations,  was  transferred  from 
the  Secretary  of  the  Interior  to  the  Secretary  of  Agriculture 


27 

by  the  first  section  of  the  aforesaid  Act  of  February  1,  1905. 

This  Act  of  February  15,  1901,  does  not  expressly  repeal 
the  whole  or  any  part  of  any  earlier  Act  of  Congress. 

The  Act  of  February  15,  1901,  embraces  the  entire  subject 
matter  of,  and  therefore  plainly  superseded  and  by  implica- 
tion repealed,  the  following  Acts,  except  so  far  as  the  same 
relate  to  tramroads,  viz: 

1.  The  Act  of  January  21,  1895  (28  U.  S.  Stat,  at 
L.,  635 — see  Appendix,  page  10),  which  authorizes  the 
Secretary  of  the  Interior,  under  general  regulations 
to  be  fixed  by  him,  to  permit  the  use  of  rights  of  way 
through  the  public  lands,  not  within  any  park,  forest, 
military,  or  Indian  reservation,  for  tramroads,  canals 
or  reservoirs  by  any  citizen  or  association  of  citizens 
engaged  in  the  business  of  mining,  quarrying,  or  cut- 
ting timber  and  manufacturing  lumber; 

2.  The  Act  of  May  14,  1896  (29  U.  S.  Stat,  at  L., 
120 — see  Appendix,  page  11),  which  expressly  amends 
the  aforesaid  Act  of  January  21, 1895,  by  adding  thereto 
a  new  section  granting  authority  to  the  Secretary  of 
the  Interior,  under  general  regulations  to  be  fixed  by 
him,  to  permit  the  use  of  rights  of  way  and  necessary 
ground  upon  the  public  lands  and  forest  reservations 
by  any  citizen  or  association  of  citizens  for  generating 
and  distributing  electric  power;  and 

3.  The  first  section  of  the  Act  of  May  11,  1898  (30 
U.  S.  Stat,  at  L.,  404 — see  Appendix,  page  17),  which 
amends  the  aforesaid  Act  of  January  21,  1895,  by 
adding  thereto  a  grant  of  authority  to  the  Secretary 
of  the  Interior,  under  general  regulations  to  be  fixed 
by  him,  to  permit  the  use  of  rights  of  way  upon  the 
public  lands,  not  within  any  park,  forest,  military,  or 
Indian  reservation,  for  tramways,  canals,  and  reservoirs, 
by  any  citizen  or  association  of  citizens  for  the  purpose 
of  furnishing  water  for  domestic,  public,  and  other 
beneficial  uses. 


28 

Consequently  these  three  Acts  need  not  be  further  con- 
sidered, except  incidentally  and  for  the  purpose  of  aiding  in 
the  construction  and  interpretation  of  the  Act  of  February 
15,  1901. 

That  the  Act  of  February  15,  1901,  was  not  inconsistent 
with,  and  did  not  supersede  or  repeal,  the  Act  of  March  3, 
1891,  and  consequently  that  an  individual  had  the  right  to 
construct,  maintain  and  use  canals,  ditches  and  pipe  lines 
upon  and  across  public  lands  of  the  United  States  for  the 
purpose  of  conveying  water  for  irrigation,  without  first  ob- 
taining permission  from  the  Secretary  of  the  Interior,  was 
directly  decided  in  a  well  considered  opinion  by  the  Supreme 
Court  of  New  Mexico  in  the  case  of 

United  States  v.  Lee,  15  N.  M.  382,  110  Pac.  607. 

That  Congress  did  not  intend  that  the  Act  of  February  15, 
1901,  should  operate  to  repeal  the  Act  of  March  3,  1891,  is  to 
be  inferred  from  the  fact  that  the  operative  language  con- 
tained in  the  former  Act  is  almost  identical  with  the  operative 
language  contained  in  the  first  section  of  the  Act  of  May  11, 
1898,  and  the  further  fact  that,  by  the  second  section  of  the 
Act  of  May  11,  1898,  which  declares  that  **  rights  of  way  for 
ditches,  canals  or  reservoirs  heretofore  or  hereafter  approved 
under  the  provisions  of  sections  eighteen,  nineteen,  twenty  and 
twenty-one'*  of  the  Act  of  March  3,  1891,  "may  be  used  for 
purposes  of  a  public  nature,"  Congress  then  unmistakably  evi- 
denced its  intention  that  the  Act  of  March  3,  1891,  should 
continue  in  force.  That  the  first  section  of  the  Act  of  May 
11,  1898,  did  not  operate  as  a  repeal  pro  tanto  of  the  Act  of 
March  3,  1891,  was  decided  in  the  case  of 

United  States  v.  Portneuf-Marsh  Valley  Irrigation  Com- 
pany, 205  Fed.  416; 

Same  case  on  appeal,  213  Fed.  601. 

That  the  Secretary  of  the  Interior,  although  he  has  erro- 
neously construed  the  Act  of  March  3,  1891,  as  applying  only 
to  rights  of  way  for  reservoirs  and  canals  to  be  used  for  the 


29 


purpose  of  irrigation,  as  I  have  already  shown  on  pages  12  to 
14  of  this  brief,  has  uniformly  construed  the  Act  of  February 
15,  1901,  as  not  repealing  sections  18  to  21  of  the  Act  of 
March  3,  1891,  is  clearly  shown  by  the  regulations  relating  to 
rights  of  way  over  public  lands  and  reservations  which  are  to 
be  found  printed  in 

31  L.  D.  13,  see  paragraph  1; 

34  L.  D.  212,  228,  see  paragraph  46; 

36  L.  D.  567,  568,  580,  see  paragraphs  1-4,  37; 

41  L.  D.  532,  533,  see  paragraphs  1,  2  and  3. 

If  the  Act  of  February  15,  1901,  does  not  operate  to  repeal 
the  Act  of  March  3,  1891,  there  is  no  conceivable  reason  why 
it  should  be  construed  as  repealing  sections  2339  and  2340  of 
the  United  States  Revised  Statutes,  the  Act  of  March  3,  1877, 
or  the  Act  of  June  4,  1897,  by  which  the  United  States,  in  its 
capacity  as  owner  of  public  and  reserved  lands  riparian  to 
lakes,  rivers  and  streams,  has  freely  granted,  as  against  itself 
and  its  successors  in  estate,  the  right  to  appropriate  the 
waters  of  such  lakes,  rivers,  and  streams  for  beneficial  uses, 
and  without  which  the  Acts  of  March  3,  1891,  and  February 
15,  1901,  would  be  applicable  only  in  cases  where  the  water  to 
be  impounded  in  reservoirs  and  conveyed  in  canals  across 
public  and  reserved  lands  could  be  appropriated  without  vio- 
lation of  such  riparian  rights,  if  any,  as  are  possessed  by  the 
United  States.  That  Congress  thought  that  these  laws  con- 
tinued in  force  notwithstanding  the  Act  of  February  15,  1901, 
is  fairly  to  be  inferred  from  the  provisions  of  section  8  of  the 
Act  of  June  17,  1902,  providing  for  Reclamation  of  Arid 
Lands.  In  support  of  this  inference  I  refer  to  the  able  opin- 
ion written  by  Assistant  Attorney-General  Frank  L.  Campbell, 
September  5,  1903,  approved  by  Secretary  of  the  Interior 
E.  A.  Hitchcock  and  reported  in  32  L.  D.  254,  wherein  the 
conclusion  is  exprassed  that  ''those  Acts"  {i.  e.,  sections  2339 
and  2340  of  the  United  States  Revised  Statutes  and  the  Act 
of  March  3,  1877)    ''are  still  in  full  force  and  effect,  and 


30 

their  operation  cannot  be  limited  or  suspended  by  executive 
authority. ' ' 

The  only  judicial  decision  that  I  have  been  able  to  find 
supporting,  even  by  inference,  the  conclusion  that  the  Act  of 
February  15,  1901,  operates  as  a  repeal  of  the  aforesaid 
earlier  Acts  is  the  decision  by  the  Circuit  Court  of  Appeals 
for  the  Eighth  Circuit  in  the  case  of 

United  States  v.  Utah  Power  and  Light  Company,  209 
Fed.  554, 

wherein  it  was  held  that  the  aforesaid  Act  of  May  14,  1896, 
withdrew  "from  the  operation  of  that  section''  {i.  e.,  section 
2339  of  the  United  States  Revised  Statutes)  ''the  subject  of 
generating,  manufacturing,  or  distributing  electric  power,  the 
manner  of  acquiring  rights  of  way  over  the  public  lands  for 
those  purposes,  and  the  nature  and  extent  of  such  rights" 
(p.  561).  This  decision,  so  far  as  it  relates  to  this  point,  is 
supported  by  reasoning  neither  cogent  nor  convincing  and 
by  no  authority  save  the  Government 's  brief ;  and  its  unsound- 
ness is  evident  from  the  fact  that  the  Act  of  May  14,  1896, 
does  not,  either  expressly  or  by  implication,  in  the  provisions 
conferring  authority  upon  the  Secretary  of  the  Interior,  refer 
to  rights  of  way  for  reservoirs,  canals  or  ditches.  Rights  of 
way  for  reservoirs,  canals  and  ditches  to  be  used  for  impound- 
ing, storing,  conveying  and  distributing  water  for  every  ben- 
eficial use,  including,  as  was  held  by  the  Circuit  Court  of 
Appeals  in  this  very  case,  the  generation  or  manufacture  of 
electric  power,  had  already  been  granted  by  section  2339  of 
the  United  States  Revised  Statutes  and  the  aforesaid  Act  of 
March  3,  1891.  But,  until  the  adoption  of  this  Act  of  May  14, 
1896,  Congress  had  not  granted  or  authorized  the  grant  of 
rights  of  way  for  electric  transmission  lines  or  the  use  of  lands 
required  for  the  construction  of  electric  generating  plants. 
This  Act  of  May  14,  1896,  should,  therefore,  plainly  have  been 
construed  as  granting  authority  to  issue  permits  for  the  con- 
struction of  electric  generating  plants  and  electric  transmis- 
sion lines  and  as  having  no  reference  whatsoever  to  rights  of 


31 


way  for  reservoirs  or  canals  used  in  storing  water  and  con- 
veying the  same  to  electric  generating  plants. 

In  this  connection  it  should  be  noted  that  the  Act  of  Feb- 
ruary 15,  1901,  whatever  may  be  its  true  construction,  applies 
expressly  and  in  plain  terms  equally  to  all  reservoirs  and  to 
all  kinds  of  aqueducts,  whether  used  to  promote  irrigation 
or  mining,  or  the  supplying  of  water  for  domestic,  public,  or 
any  other  beneficial  use;  and  consequently  that,  if  this  Act 
superseded  and  repealed  by  implication  section  2339  of  the 
United  States  Revised  Statutes  in  its  application  to  rights  of 
way  used  to  promote  the  utilization  of  water  for  the  genera- 
tion of  electric  power,  then,  by  parity  of  reasoning,  it  is 
indubitable  that  it  also  superseded  and  repealed  by  implica- 
tion said  section  9  of  the  Act  of  July  26,  1866,  sections  2339 
and  2340  of  the  United  States  Revised  Statutes,  and  also 
sections  18  to  21  of  the  Act  of  March  3,  1891,  as  amended  by 
section  2  of  the  Act  of  May  11,  1898,  in  their  application  to 
rights  of  way  used  to  promote  irrigation,  mining,  domestic, 
public,  or  any  other  beneficial  use,  that  is  to  say,  in  their 
entirety. 

But,  as  the  decree  of  the  District  Court  in  the  case  at  bar 
cannot  otherwise  be  sustained,  I  assume  that  it  will  be  con- 
tended in  this  Court  on  plaintiff's  behalf  that  the  Act  of 
February  15,  1901,  is  to  be  construed  as  substantive  legisla- 
tion superseding  and  by  implication  repealing  the  aforesaid 
earlier  Acts  of  Congress  and  granting  to  the  Secretary  of  the 
Interior  full  power  and  authority  to  grant  or  refuse  to  grant, 
in  his  uncontrolled  discretion,  in  accordance  with  his  con- 
ception of  what  is  required  by  the  public  interest,  and  upon 
such  terms  and  conditions  as  he  may  prescribe  by  general 
regulations,  permits  to  locate  and  use  rights  of  way  for 
reservoirs  and  canals  for  storing  and  conveying  water  for 
any  or  all  of  the  purposes  therein  specified  and  also  rights  of 
way  for  plants  for  the  generation. and  transmission  of  electric 
power. 

If  the  Act  of  February  15,  1901,  is  to  be  construed  as 
repealing  by  implication  the  earlier  legislation  whereby  Con- 


32 

gress  has  itself  established  all  needful  rules  and  regulations 
respecting  the  appropriation  of  water  and  the  appropriation 
and  acquisition  of  rights  of  way  for  reservoirs  and  canals 
upon  the  public  lands  and  reservations  of  the  United  States 
and  further  as  delegating  to  the  Secretary  of  the  Interior  the 
power  to  prescribe  by  general  regulations,  the  terms  and 
conditions  upon  which  citizens,  voluntary  associations  and 
corporations  may  appropriate  water  and  acquire  rights  of 
way  for  reservoirs  and  canals  upon  the  public  lands  and 
reservations  of  the  United  States  in  aid  of  irrigation,  mining, 
domestic,  public,  or  any  other  beneficial  use,  and  further  as 
conferring  upon  the  Secretary  of  the  Interior  discretionary 
power,  in  accordance  with  his  conception  of  what  is  or  is  not 
compatible  with  the  public  interest,  to  grant  or  to  refuse  to 
grant  to  any  citizen  or  association  of  citizens  or  corporation 
a  permit  or  license  to  use,  upon  the  terms  and  conditions  so 
prescribed  by  him,  a  right  of  way  for  any  such  purpose,  and 
also  power  in  his  discretion  to  revoke  any  permit  theretofore 
granted  by  him  and  terminate  the  rights  initiated,  possessed 
and  exercised  thereunder,  then,  as  I  shall  presently  show,  this 
Act  is  repugnant  to  the  Constitution  and  void  as  an  attempted 
delegation  by  Congress  to  an  executive  officer  of  a  part  of 
the  legislative  power  which  the  Constitution  has  conferred 
upon  Congress  alone. 

But,  if  the  Act  of  February  15,  1901,  is  susceptible  of  a 
construction  which,  instead  of  making  it  operate  as  a  repeal 
by  implication  of  the  earlier  Acts  of  Congress  relating  to  the 
same  general  subject,  will  harmonize  it  with  such  earlier  Acts 
and  render  unnecessary  a  consideration  and  decision  of  the 
question  of  its  constitutionality,  such  construction  is  required 
by  the  following  rules,  viz: 

1.  In  the  exposition  of  several  statutes  relating  to  the 
same  subject,  the  intention  of  the  lawmaker  is  to  be 
deduced  from  a  view  of  all  of  the  statutes  taken  together, 
because,  in  the  absence  of  contradictory  or  inconsistent 
provisions,  they  are  supposed  to  have  the  same  object. 
This  rule  is  supported  by  the  decision  of  this  Court  in 
Kohlsaat  v.  Murphy,  96  U.  S.  153. 


33 

2.  Repeals  by  implication  are  not  favored  and  if,  by 
any  reasonable  construction,  two  or  more  statutes,  in 
pari  materia,  enacted  at  different  dates  can  be  har- 
monized so  as  to  stand  together,  the  construction  which 
will  accomplish  that  result  should  be  adopted.  This  rule 
is  supported  by  the  decisions  of  this  Court  in 

Wilmot  V.  Mudge,  103  U.  S.  217,  221 ; 
Cope  V.  Cope,  137  U.  S.  682,  686. 

3.  **  Where  a  statute  is  susceptible  of  two  construc- 
tions, by  one  of  which  grave  and  doubtful  constitutional 
questions  arise  and  by  the  other  of  which  such  questions 
are  avoided,  our  duty  is  to  adopt  the  latter."  This  rule 
is  supported  by  the  decision  of  this  Court  in 

United  States  v.  Delaware  and  Hudson  Company,  213 
U.  S.  366,  407-8. 

Furthermore  it  is  well  settled  that,  as  declared  by  this 
Court  in  Town  of  Red  Rock  v.  Henry,  106  U.  S.  596,  601-2 : 
''When  an  affirmative  statute  contains  no  expression 
of  a  purpose  to  repeal  a  prior  law,  it  does  not  repeal  it 
unless  the  two  Acts  are  in  irreconcilable  conflict,  or  unless 
the  later  statute  covers  the  whole  ground  occupied  by 
the  earlier  and  is  clearly  intended  as  a  substitute  for  it, 
and  the  intention  of  the  Legislature  to  repeal  must  be 
clear  and  manifest." 

To   determine   whether   said  Act   of   February    15,    1901, 
repeals  by  implication,  or  may  be  so  construed  a^  to  har- 
monize with,  the   aforesaid  earlier  Acts  of  Congress,  it  is 
necessary  to  analyze  and  compare  their  respective  provisions. 
The  essential  features  of  the  aforesaid  earlier  Acts  are : 

(a)  A  free  grant,  as  against  the  United  States  in  its 
capacity  as  owner  of  riparian  lands,  of  the  right  to  appro- 
priate, for  any  and  every  lawful  beneficial  use,  the  waters 
of  lakes,  rivers  and  streams  on  public  lands  and  forest 
and  other  reservations; 


34 

(b)  A  free  grant  of  all  rights  of  way  for  reservoirs 
and  canals  reasonably  required  for  the  appropriation, 
storage,  conveyance  and  use  of  such  waters ;  and 

(c)  As  an  incident  to  the  grant  of  rights  of  way,  a 
free  grant  of  the  right  to  enter  upon  public  and  reserva- 
tion lands,  and  to  survey,  locate  and  appropriate  such 
rights  of  way,  subject  only  to  the  condition  that,  if  the 
desired  rights  of  way  are  within  any  reservation,  they 
must  be  so  located  as  not  to  interfere  with  the  proper 
occupation  of  such  reservation  by  the  government. 

The  Act  of  February  15,  1901,  does  not  cover  these  essen- 
tial features  of  the  earlier  Acts  because  it  does  not  expressly — 

(a)  Grant  to  any  person  or  corporation  the  right  to 
appropriate  the  water  of  any  lake,  river,  or  stream  upon 
any  public  land  or  reservation  of  the  United  States; 

(b)  Deny  to  any  person  or  corporation  the  right  to 
appropriate  the  water  of  any  lake,  river  or  stream  upon 
any  public  land  or  reservation  of  the  United  States; 

(c)  Grant  to  any  person  or  corporation  any  right  of 
way  for  a  reservoir,  canal  or  other  aqueduct; 

(d)  Deny  to  any  person  or  corporation  the  right  to 
locate  and  appropriate  any  right  of  way  for  a  reservoir, 
canal  or  other  aqueduct; 

(e)  Grant  to  any  person  or  corporation  the  right  to 
enter  upon  any  public  land  or  reservation  for  the  purpose 
of  surveying,  locating  or  appropriating  a  right  of  way 
for  any  reservoir,  canal  or  other  aqueduct ;  or 

(f)  Deny  to  any  person  or  corporation  the  right  to 
enter  upon  any  public  land  or  reservation  for  the  purpose 
of  surveying,  locating  or  appropriating  a  right  of  way 
for  any  reservoir,  canal  or  other  aqueduct. 

On  the  contrary,  the  Act  of  February  15,  1901,  by  expressly 
authorizing  the  Secretary  of  the  Interior,  ^' under  general 
regulations  to  he  fixed  by  him,  to  permit  the  use  of  rights  of 


35 

tuay  through  the  public  lands,  forest  and  other  reservations'', 
for  the  purposes  therein  specified,  assumes  by  necessary  impli- 
cation the  continued  existence  of  the  following  rights  recog- 
nized or  granted  by  the  aforesaid  earlier  Acts  of  Congress,  viz : 

(a)  The  right  to  appropriate,  for  every  beneficial  use, 
the  water  of  lakes,  rivers  and  streams  on  the  public  lands 
and  reservations  of  the  United  States; 

(b)  The  right  to  construct  and  maintain,  on  such  lands 
and  reservations,  reservoirs,  canals  and  other  aqueducts 
as  means  to  the  appropriation  and  use  of  water; 

(c)  The  right  to  locate,  appropriate  and  possess,  on 
such  lands  and  reservations,  all  necessary  rights  of  way 
for  such  reservoirs,  canals  and  aqueducts ;  and 

(d)  The  right  to  use  such  rights  of  way  for  reservoirs 
and  aqueducts  for  impounding,  storing,  conveying  and 
distributing  water  for  all  lawful  beneficial  uses. 

The  Act  of  February  15,  1901,  does  not  expressly  declare 
whether  or  not  the  ''general  regulations  to  be  fixed  by"  the 
Secretary  of  the  Interior  shall  be  consistent  with  the  pro- 
visions of  the  aforesaid  earlier  Acts  of  Congress  relating  to 
the  appropriation  of  water  and  making  grants  of  rights  of 
way  for  reservoirs  and  canals,  and,  therefore,  as  a  conse- 
quence of  the  implied  limitation  upon  the  authority  of  execu- 
tive officers  declared  by  this  Court  in  Morrill  v.  Jones  and 
other  cases  cited  on  page  24  of  this  brief,  should  be  deemed 
to  authorize  the  Secretary  of  the  Interior  to  make  only  such 
general  regulations  as  shall  be  consistent  with  such  earlier 
Acts. 

The  Act  of  February  15,  1901,  does  not  expressly  declare 
or  define  "the  public  i7iterest"  (which,  is  plainly  the  equiva- 
lent of  ''public  policy"),  incompatibility  with  which  is  the 
only  ground  expressly  mentioned  therein  for  not  allowing 
"permits"  "within  or  through  any  of  said  parks  or  any 
forest,  military,  Indian  or  other  reservation",  and,  conse- 
quently, should  be  construed  as  requiring  the  Secretary  of 


36 

the  Interior  to  ascertain  or  determine  in  every  ease  what 
constitutes  ''public  interest"  or  ''public  policy"  by  resorting, 
as  courts  of  justice  do,  to  the  Constitution,  to  the  statutes, 
and  to  judicial  decisions  declaring  and  interpreting  the  law 
of  the  land. 

As  pointed  out  in  the  middle  paragraph  on  page  19  of  this 
brief,  the  only  condition  attached  by  any  Act  of  Congress, 
prior  to  February  15,  1901,  to  the  free  grant  of  rights  of  way 
for  reservoirs  and  canals  thereby  made  is  the  condition  speci- 
fied in  section  18  of  said  Act  of  March  3,  1891,  namely,  "that 
no  such  right  of  way  shall  be  so  located  as  to  interfere  with 
the  proper  occupation  by  the  Government  of  any  such  reserva- 
tion, and  all  maps  of  location  shall  be  subject  to  the  approval 
of  the  Department  of  the  Government  having  jurisdiction  of 
such  reservation,  and  the  privilege  herein  granted  shall  not 
be  construed  to  interfere  with  the  control  of  water  for  irriga- 
tion and  other  purposes  under  authority  of  the  respective 
States  or  Territories." 

It  follows,  I  submit,  that  the  Act  of  February  15,  1901,  if 
it  be  construed  in  connection  with  the  earlier  Acts  of  Congress 
relating  to  the  same  subject,  does  not  confer  upon  the  Sec- 
retary of  the  Interior  discretionary  authority  to  refuse  to 
permit  any  citizen,  association  or  corporation  of  the  United 
States  to  acquire  or  use  any  right  of  way  for  a  reservoir  or 
canal  upon  public  lands  or  within  any  forest  or  other  reserva- 
tion of  the  United  States  except  when,  upon  investigation,  it 
is  ascertained  that  such  right  of  way  has  been  so  located  as  to 
interfere  with  the  proper  occupation  by  the  Government  of 
such  forest  or  other  reservation  for  the  purposes  for  which  the 
same  was  created.  For,  otherwise,  the  grant  of  authority 
made  by  the  Act  of  February  15,  1901,  "to  permit  the  use 
of  rights  of  way  through  the  public  lands,  forest  and  other 
reservations  of  the  United  States"  (such  rights  of  way  being 
granted  by,  and  capable  of  being  acquired  under,  the  afore- 
said earlier  Acts  of  Congress  and  not  otherwise),  would  be  a 
grant  of  discretionary  authority  to  the  Secretary  of  the 
Interior  to  make  inoperative  said  earlier  Acts  and  to  deny  to 


37 

any  citizen,  association  or  corporation  the  rights  thereby 
granted;  and  this  would  involve  the  absurdity  of  holding  (if 
I  may  paraphrase  the  language  used  in  the  opinion  of  this 
Court  in  Daniels  v.  Wagner,  237  U.  S.  547,  557-9)  that, 
although  Congress  possesses,  and  by  the  enactment  of  its 
aforesaid  earlier  Acts  has  actually  exercised,  the  power  to 
provide  for  the  disposition  or  granting  of  rights  of  way  over 
the  public  lands  and  reservations  of  the  United  States  and  to 
fix  the  terms  and  conditions  upon  which  the  people  may 
enjoy  the  right  to  acquire  such  rights  of  way,  nevertheless 
**it  has  not  done  so,  since  every  command  which  it  has 
expressed  on  this  subject  may  be  disregarded,  and  every  right 
which  it  has  conferred  on  the  citizen  may  be  taken  away  by 
an  unlimited  and  undefined  discretion  which  is  vested  by 
law"  (i.  e.j  the  Act  of  February  15,  1901)  "in  the  adminis- 
trative officers  appointed  for  the  purpose  of  giving  effect  to 
the  law". 

The  operative  language  of  the  Act  of  February  15,  1901, 
viz,  the  entire  first  clause  thereof,  construed  literally,  merely 
confers  upon  the  Secretary  of  the  Interior  authority  "to 
permit",  i.  e.,  to  allow,  either  tacitly  or  expressly,  "the  use 
of  rights  of  way  through  the  public  lands,  forest  and  other 
reservations  of  the  United  States,"  for  certain  designated 
purposes,  is  not  expressly  limited  in  its  operation  either  to 
rights  of  way  existing  at  the  date  of  the  Act  or  to  rights  of 
way  thereafter  to  be  acquired  and  is  silent  upon  the  subject 
of  their  acquisition.  But  rights  of  way  over  the  public  lands, 
forest  and  other  reservations,  whether  acquired  before  or 
after  the  enactment  of  the  Act  of  February  15,  1901,  con- 
stitute property,  the  owners  of  which  are  entitled  to  the 
protection  of  the  Constitution;  and  therefore  Congress  does 
not  possess,  and  consequently  cannot  confer  upon  the  Sec- 
retary of  the  Interior,  the  power  to  take  any  such  right  of 
way,  except  for  public  use  and  upon  making  just  compensa- 
tion therefor,  or  the  power  to  prohibit  or  prevent  any  citizen, 
association  or  corporation  from  possessing,  or  using  for  any 


38 

lawful  purpose,  any  such  right  of  way.  It  follows  necessarily 
that  the  Act  of  February  15,  1901,  if  construed  literally  and 
without  reference  to  other  legislation  upon  the  same  subject, 
is  without  meaning,  force  or  effect;  and  consequently,  under 
accepted  rules  of  construction,  it  is  necessary  to  endeavor  to 
ascertain  the  intent  of  Congress  by  considering  the  language 
of  this  Act  as  a  whole  in  connection  with  the  other  Acts  of 
Congress  relating  to  the  same  subject  matter  existing  at  the 
date  of  its  enactment. 

In  any  attempt  to  construe  the  Act  of  February  15,  1901, 
in  connection  with  the  aforesaid  earlier  Acts  of  Congress,  two 
questions  naturally  arise,  viz: 

1.  "What  is  the  purpose  of  this  Act?  and 

2,  What  is  the  legal  nature  and  effect  of  the  permits 
to  be  issued  pursuant  to  its  provisions  and  the  general 
regulations  to  be  adopted  thereunder? 

The  Act  of  February  15,  1901,  does  not  contain  an  express 
and  explicit  answer  to  either  of  these  questions,  but  rather 
leaves  its  purpose  and  the  nature  and  effect  of  the  permits 
whose  issuance  is  thereby  authorized  to  be  inferred  by  pro- 
cesses of  legal  reasoning  based  upon  a  consideration  of  general 
principles  of  law  recognized  and  enforced  by  the  Courts  of 
the  United  States. 

In  endeavoring  to  ascertain  the  purpose  of  the  Act  of 
February  15,  1901,  and  the  legal  nature  and  effect  of  the 
permits  to  be  issued  thereunder,  one  should  bear  constantly  in 
mind  the  following  considerations: 

(a)  The  right  to  appropriate  for  beneficial  uses  the 
waters  of  lakes,  rivers  and  streams  on  the  public  lands 
and  reservations  of  the  United  States  was,  in  February, 
1901,  and  is  now  (either  by  virtue  of  the  political  sov- 
ereignty and  authority  possessed  by  each  state  of  the 
Union  or  by  virtue  of  grants  made  by  the  United  States, 
in  its  capacity  as  proprietor  of  public  lands  and  reserva- 
tions riparian  to  such  sources  of  water  supply,  by  sections 


39 


2339  and  2340  of  the  United  States  Revised  Statutes,  the 
Act  of  March  3,  1877,  and  the  Act  of  June  4,  1897)  gov- 
erned, regulated  and  controlled  by  state  law. 

Gutierres  et  al.  v.  Albuquerque  Land  and  Irrigation 
Co.,  188  U.  S.  545,  552-5; 

Kansas  v.  Colorado,  206  U.  S.  46,  85-95. 

(b)  Under  the  laws  of  all  of  the  western  states,  the 
right  to  appropriate  water  becomes  a  vested  and  accrued 
right  only  by  construction  of  the  necessary  works  and 
actual  use  of  the  water  appropriated. 

Black's  Pomeroy  on  Water  Rights,  sections  49,  50,  51 

and  54; 
Farnham  on  Waters  and  Water  Rights,  sections  662, 

666,  66S; 
Maeris  v.  Bicknell,  7  Cal.  261 ; 
Kimball  v.  Gearhart,  12  Cal.  27,  49. 

(c)  Under  state  laws,  whether  operating  ex  propria 
vigore  or  by  virtue  of  the  consent  of  Congress  evidenced 
by  the  Acts  of  Congress  mentioned  in  (a)  supra  and 
section  18  of  the  Act  of  March  3,  1891,  as  well  as  under 
section  8  of  the  Reclamation  Act  of  June  17,  1902  (32 
U.  S.  Stat,  at  L.  388),  beneficial  use  is  the  basis,  the 
measure  and  the  limit  of  the  right  to  water  which  may 
be  acquired  by  appropriation. 

Black's  Pomeroy  on  Water  Rights,  section  85; 

Atchison  v.  Peterson,  20  Wall.  507 ; 

Riverside  Water  Co.  v.  Sargent,  112  Cal.  230,  234. 

(d)  By  none  of  the  general  Acts  of  Congress  in  force 
in  1901  relating  to  the  same  subject  matter,  i.  e.,  Sections 
2339  and  2340  of  the  United  States  Revised  Statutes,  the 
Act  of  March  3,  1877,  the  Act  of  March  3,  1891,  the  Act 
of  June  4,  1897,  and  the  second  section  of  the  Act  of  May 
11,  1898,  was  there  expressly  conferred  upon  the  Secre- 
tary of  the  Interior  any  authority  to  adopt  and  enforce 


40 


regulations  providing  for  the  administration  and  execu- 
tion of  such  acts,  except  the  authority  conferred  by  said 
Act  of  June  4,  1897,  to  make  rules  and  regulations  con- 
cerning the  occupancy  and  use  of  forest  reservations  de- 
signed to  insure  the  objects  for  which  such  reservations 
were  created,  namely  the  preservation  of  the  forests  from 
destruction  and  securing  favorable  conditions  of  water 
flow,  or  any  authority  to  supervise  or  control  the  location 
of  rights  of  way  for  reservoirs  and  canals,  except  such 
authority  as  was  granted  by  implication  by  the  last  clause 
of  section  18  of  the  Act  of  March  3,  1891,  which  declares 
that  no  ''right  of  way  shall  be  so  located  as  to  interfere 
with  the  proper  occupation  by  the  Government  of  any 
such  reservation,  and  all  maps  of  location  shall  be  subject 
to  the  approval  of  the  Department  of  the  Government 
having  jurisdiction  of  such  reservation.'' 

(e)  In  none  of  the  general  Acts  of  Congress  in  force 
in  1901  relating  to  this  subject,  except  said  Act  of  March 
3,  1891,  was  there  any  provision  for  making  a  record  of 
any  right  of  way  for  a  reservoir  or  canal  located  upon 
public  lands  or  reservations  of  the  United  States;  and 
the  Act  of  March  3,  1891,  did  not  authorize  the  approval 
of  maps  of  rights  of  way  located  on  unsurveyed  lands. 
See: 

Santa  Fe  Pacific  R.  R.  Co.,  29  L.  D.  213 ; 
Lincoln  County  Water  Supply  and  Land  Co.  v.  Big 
Sandy  Reservoir  Co.,  32  L.  D.  463. 

(f)  Under  the  provisions  of  section  19  of  the  Act  of 
March  3,  1891,  approval  by  the  Secretary  of  the  Interior 
of  a  map  showing  the  location  of  a  reservoir  or  canal 
upon  surveyed  lands  operated  to  vest  title  in  the  locator 
to  the  easement  or  determinable  fee  granted  by  that  Act, 
subject  to  forfeiture  if  he  failed  to  complete  the  con- 
struction of  his  reservoir  or  canal  within  five  years;  but 
such  forfeiture  could  be  accomplished  only  by  a  legislative 
act  or  by  judicial  proceedings.     See: 


41 


Noble  V.  Union  River  Logging  R.  R.  Co.,  147  U.  S. 

165,  172-6; 
Bybee  v.  Oregon  and  California  R.  R.  Co.,  139  U.  S. 

663; 
Schulenberg  v.  Harriman,  21  Wall.  44 ; 
Utah,  N.  &  C.  R.  Co.  v.  Utah  &  C.  Ry.  Co.,  110  Fed. 

879,   890; 
Allen  et  al.  v.  Denver  Power  and  Irrigation  Co.,  38 

L.  D.  207,  211. 

(g)  The  Secretary  of  the  Interior  had,  by  an  almost 
uniform  line  of  decisions,  refused,  however  erroneously, 
to  accept  and  approve  maps  filed  pursuant  to  the  provi- 
sions of  section  19  of  the  Act  of  March  3,  1891,  and  the 
amendment  thereof  contained  in  section  2  of  the  Act  of 
May  11,  1898,  unless  the  applicant  certified  that  the 
right  of  way  delineated  upon  such  map  was  desired  either 
exclusively  for  irrigation  or  for  the  main  purpose  of 
irrigation.     See : 

South  Platte  Canal  and  Reservoir  Co.,  20  L.  D.  154; 

Town  of  Delta,  32  L.  D.  461 ; 

Regulations,  paragraph  23,  34  L.  D.  212,  221-2 ; 

Regulations,  paragraph  21,  36  L.  D.  567,  574. 

(h)  Under  the  special  Acts  of  January  21,  1895,  May 
14,  1896,  and  the  first  section  of  the  Act  of  May  11,  1898, 
referred  to  on  page  27  of  this  brief,  which  authorized  the 
Secretary  of  the  Interior  to  '*  permit  the  use  of  right  of 
way"  under  general  regulations  to  be  fixed  by  him,  the 
Secretary  of  the  Interior  had  adopted  regulations  pro- 
viding that  any  applicant  for  a  permit  might  file  a  map 
and  field  notes  showing  the  location  of  the  desired  right 
of  way  accompanied  by  evidence  showing  that  the  appli- 
cant was  entitled  to  avail  himself  of  the  privileges  granted 
by  the  Act,  and  that  the  Secretary  of  the  Interior,  if  the 
application  were  found  satisfactory,  would  issue  the  de- 
sired permit  and  thereupon  send  a  copy  of  the  original 


42 


map  to  the  local  officers  who  were  directed  to  mark  the 
line  of  the  right  of  way  upon  the  township  plats  and 
note  opposite  each  tract  of  public  land  affected  that  such 
permit  had  been  issued.  These  regulations  are  printed 
in  20  L.  D.  165,  23  L.  D.  519  and  27  L.  D.  495.  In  section 
9  of  the  regulations  printed  in  20  L.D.  and  section  10  of 
the  regulations  printed  in  23  L.  D.  and  27  L.  D.  it  is 
stated  that  permission  may  be  given  under  these  Acts 
for  rights  of  way  on  unsurveyed  land. 

Such  being  the  condition  of  the  law  when  the  Act  of  Feb- 
ruary 15,  1901,  was  adopted,  the  most  reasonable  and  natural 
inference  to  be  made  from  its  provisions  is  that  the  purposes 
sought  to  be  accomplished  by  its  enactment  were  as  follows : 

(a)  To  enlarge  and  extend  the  right  granted  by  the 
Act  of  June  4,  1897,  to  the  Secretary  of  the  Interior  to 
make  regulations  designed  to  aid  in  the  administration 
and  execution  of  that  Act,  by  authorizing  him  to  adopt 
and  enforce  general  regulations  designed  to  aid  in  the 
administration  and  execution  of  all  Acts  of  Congress 
granting,  and  authorizing  the  use  of,  rights  of  way  for 
reservoirs,  canals,  plants  for  the  generation  and  distribu- 
tion of  electric  power,  and  telegraph  and  telephone  sys- 
tems, whether  on  public  lands,  forest  or  other  reserva- 
tions of  the  United  States; 

(b)  To  enable  the  Secretary  of  the  Interior,  under 
general  regulations,  to  permit  any  person  desirous  of 
acquiring  a  right  of  way  for  the  purposes  therein  speci- 
fied, whether  on  surveyed  or  unsurveyed  public  lands  and 
reservations,  to  file  in  the  land  office  maps  and  field  notes 
showing  the  location  thereof  prior  to  construction ; 

(c)  To  enable  the  Secretary  of  the  Interior  to  provide 
for  making  a  record  in  the  United  States  Land  Office  of 
rights  of  way  located  on  public  lands,  forest  or  other 
reservations,  whether  surveyed  or  unsurveyed ;  and 

(d)  To  enable  the  Secretary  of  the  Interior  to  estab- 


43 

lish  a  procedure  whereby  any  person  desirous  of  obtain- 
ing a  right  of  way  for  a  reservoir  or  canal  or  other 
authorized  work  may  obtain  a  determination,  in  advance 
of  construction,  whether  his  proposed  right  of  way,  if 
located  within  the  boundaries  of  a  forest  or  other  reserva- 
tion, is  so  located  as  not  to  interfere  with  the  proper 
occupation  of  such  reservation  by  the  Government,  if  the 
lands  upon  which  such  right  of  way  is  located  are  unsur- 
veyed  or  if  it  is  impracticable  or  inconvenient  for  any 
other  reason  to  comply  fully  with  the  provisions  of 
section  19  of  the  Act  of  March  3,  1891. 

In  endeavoring  to  ascertain  the  legal  nature  and  effect  of 
the  permits  the  issuance  of  which  is  authorized  by  the  Act 
of  February  15,  1901,  one  should  take  into  consideration  the 
following  propositions,  which,  I  submit,  can  hardly  be  deemed 
disputable,  viz: 

(a)  That  nothing  in  the  Act  of  February  15,  1901, 
negatives  or  denies  the  right  which,  as  I  have  already 
shown  or  pages  21  to  25  of  this  brief,  existed  under 
earlier  Acts  of  Congress  to  locate  definitely,  and  acquire 
title  to,  rights  of  way  for  reservoirs  or  canals  by  actual 
construction  of  such  reservoirs  or  canals; 

(b)  That  there  is  no  necessary  inconsistency  between 
the  provisions  of  section  19  of  the  Act  of  March  3,  1891, 
under  which  maps  of  location  may  be  filed  with  and 
approved  by  the  Secretary  of  the  Interior  when  the  pro- 
posed right  of  w^ay  is  located  upon  surveyed  public  lands 
within  or  without  a  reservation  and  the  provisions  of 
the  Act  of  February  15,  1901,  under  which  the  Secretary 
of  the  Interior  is  authorized  to  issue  permits  for  the 
location  and  use  of  rights  of  way  for  reservoirs  and 
canals  on  public  lands  and  reservations,  whether  surveyed 
or  unsurveyed  and  whether  the  applicant  finds  it  imprac- 
ticable, or  for  any  reason  does  not  desire,  to  fully  comply 
with  the  requirements  of  section  19  of  said  Act  of  March 
3,  1891;  and,  consequently, 


44 

(c)  That  said  act  of  February  15,  1901,  does  not  indi- 
dicate  an  intention  on  the  part  of  Congress  either  to 
make  the  obtaining  of  a  permit  under  its  provisions  a 
condition  precedent  to  the  appropriation  and  acquisition 
of  rights  of  way  for  reservoirs  and  canals  by  any  person 
who  fully  complies  with  all  of  the  requirements  and 
conditions  of  the  aforesaid  earlier  Acts  of  Congress  or  to 
prohibit  any  person  who  has  obtained  a  permit  pursuant 
to  its  provisions  from  subsequently  complying  with  all 
of  the  provisions  of  said  earlier  Acts  and  thereby  acquir- 
ing all  and  singular  the  rights  thereby  granted. 

It  follows:  (1)  that  the  permit,  which  the  Act  of  February 
15,  1901,  authorizes  to  be  issued  and  expressly  declares  to 
be  revocable  by  the  Secretary  of  the  Interior  in  his  dis- 
cretion, is  designed  to  protect  the  permittee,  during  the  pre- 
liminary stages  of  his  enterprise,  by  making  a  public  record 
and  giving  public  notice  of  his  proposed  appropriation  of 
right  of  way,  and  involves  an  official  determination  that  such 
right  of  way  has  been  properly  located;  and  (2)  that  such 
permit,  although  revocable  at  any  time  without  judicial  pro- 
ceedings in  the  event  of  the  permittee's  failing  or  neglecting 
to  commence  and  prosecute  to  completion  within  a  reasonable 
time  the  construction  of  the  works  contemplated  by  his  per- 
mit, becomes  functus  officio  when  the  permittee,  by  his  com- 
pliance with  the  aforesaid  earlier  Acts  of  Congress  and  the 
construction  of  his  proposed  reservoir,  canal,  plant  for  the 
generation  and  distribution  of  electric  power,  or  telephone 
and  telegraph  system,  becomes  entitled  to  claim  and  assert 
ownership  of  vested  and  accrued  rights  of  way  for  the  main- 
tenance and  operation  of  the  works  constructed  by  him. 

The  conclusion  from  the  foregoing  considerations  is  that 
the  true  intent  and  meaning  of  the  Act  of  February  15,  1901, 
is  simply  to  grant  to  the  Secretary  of  the  Interior  authority : 
(1)  To  adopt  and  enforce  general  regulations  consis- 
tent with,  and  designed  to  aid  in  administering  and  carry- 
ing into  effect,  the  laws  of  the  United  States  relating 


45 


to  rights  of  way,  for  the  purposes  therein  specified,  over 
the  public  lands,  forest  and  other  reservations  of  the 
United  States;  and 

(2)  Under  and  pursuant  to  such  regulations,  upon 
application  therefor  being  made,  and  upon  a  determina- 
tion that  the  applicant  has  properly  located  a  right  of 
of  way  for  his  proposed  works  and  is  a  citizen,  association 
or  corporation  of  the  United  States,  to  issue  a  permit 
under  which  the  applicant  may  safely  proceed  to  con- 
struct and  use  a  reservoir,  canal,  plant  for  the  generation 
and  distribution  of  electric  power  or  telephone  and  tele- 
graph system,  and  thereby  acquire  a  vested  right  of  way 
under  and  by  virtue  of  the  aforesaid  earlier  Acts  of 
Congress. 

So  construed,  the  Act  of  February  15,  1901,  is  in  no  respect 
inconsistent,  or  in  conflict,  with  the  aforesaid  earlier  Acts  of 
Congress. 

Furthermore,  if  the  Act  of  February  15,  1901,  stood  alone, 
and  if  no  aid  in  its  interpretation  and  construction  were 
afforded  by  the  aforesaid  earlier  Acts  of  Congress,  I  submit 
that,  under  general  principles  of  law  recognized  and  declared 
in  recent  decisions  of  this  Court,  it  should  be  held  that, 
when  any  citizen,  association  or  corporation  enters  upon  pub- 
lic lands,  forest  or  other  reservations  of  the  United  States 
under  the  authority  of  a  permit  issued  pursuant  to  the  pro- 
visions of  said  Act  of  February  15,  1901,  and  at  great  expense 
constructs  reservoirs,  canals,  plants  for  the  generation  and 
distribution  of  electric  power,  telephone  and  telegraph  systems, 
whether  devoted  to  public  or  private  uses,  such  citizen,  asso- 
ciation or  corporation  acquires  a  vested  interest  in  the  right 
of  way  appropriated  and  occupied,  and  that  the  permit 
originally  revocable  at  will  becomes  irrevocable.  Such  a  con- 
clusion seems  absolutely  necessary  when  the  right  of  way 
and  works  constructed  thereon  are  devoted  to  public  use, 
because  in  every  such  case,  as  a  matter  of  practical  necessity 


46 

and  also  as  a  matter  of  legal  obligation  enforced  through  the 
agency  of  public  utility  commissions  and  courts  of  justice, 
the  owner  of  property  devoted  to  the  service  of  the  public, 
whether  for  supplying  water,  light,  power  or  telegraph  or 
telephone  service,  is  not  at  liberty  to  suspend  or  abandon  the 
service  of  the  public  by  means  of  such  property  so  long  as 
communities  requiring  such  service  exist  and  are  ready,  able 
and  willing  to  receive,  and  to  pay  adequate  compensation 
for,  the  same,  and  because  the  occupation  and  use  of  rights 
of  way  upon  the  public  lands  and  forest  reservations  and  the 
construction  and  operation  thereon  of  public  utility  plants 
of  the  kinds  therein  specified  naturally  result  in  building 
up  communities  dependent,  for  their  comfort,  prosperity  and 
even  existence,  upon  the  service  rendered  by  means  of  such 
plants,  and  because  the  possession  and  exercise  by  an  executive 
officer  of  the  United  States  of  the  right  and  power  to  revoke, 
in  his  discretion,  the  permits  issued  by  him  or  his  predeces- 
sor in  office  and  thereby  to  terminate  the  right  of  occupancy 
and  use  of  such  right  of  way,  after  the  construction  of  such 
plants,  would  deprive  the  owner  of  the  public  utility  of  the 
power  to  discharge  his  duty  to  the  public  and  either  deprive 
the  public  of  its  accustomed  service  or  compel  the  public  to 
obtain  the  necessary  authority  and  to  serve  its  own  uses  by 
means  of  public  ownership  and  operation  of  such  utility. 

The  general  principles  of  law  to  which  reference  is  made 
at  the  beginning  of  the  last  paragraph,  and  the  decisions  of 
this  Court  recognizing  and  applying  the  same,  are  as  follows : 
1.  Where  a  grant  of  rights  of  way,  franchises  or  other 
rights  and  privileges  is  made  by  a  general  law  designed 
to  further  public  objects,  to  promote  the  general  welfare, 
or  to  aid  in  the  general  development  of  the  country  by 
inducing  individuals  or  corporations  to  undertake  and 
accomplish  great  and  expensive  enterprises  or  works  of 
a   public   or   quasi-public   character,   such   general   law, 
instead  of  being  construed  strictly  in  favor  of  the  Govern- 
ment and  against  the  grantee,  should  be  given  ''a  prac- 


47 


tical,  common-sense  construction"  in  order  that  its  objects 
may  be  accomplished. 

Kussell  V.  Sebastian,  233  U.  S.  195,  205-210; 

United  States  v.  Denver  and  Rio  Grande  R.  Co.,  150 
U.  S.  1,  8-15. 

2.  Whenever,  by  or  under  authority  of  a  constitution 
or  a  general  law  enacted  by  the  legislature,  authority 
or  consent  is  given  by  government  to  any  individual  or 
corporation  to  exercise  a  franchise  or  public  easement  or 
similar  right,  as  a  means  of  inducing,  or  in  contemplation 
of,  the  investment  of  a  large  amount  of  capital  in  the  con- 
struction of  works  of  a  permanent  nature  to  be  used  in 
permanent  service  of  the  public,  such  authority  or  consent 
should  be  deemed  to  be,  not  a  grant  of  a  mere  revocable 
license,  but  rather  a  grant  of  a  franchise,  easement  or 
right  in  perpetuity,  unless  a  shorter  time  is  clearly  spe- 
cified. 

Boise   Artesian   H.   &    C.   Water   Co.   v.   Boise   City, 

230  U.  S.  84,  87-92; 
Russell  V.  Sebastian,  233  U.  S.  195,  202-4; 
New  York  Electric  Lines  Co.  v.  Empire  City  Subway 

Co.,  235  U.  S.  179,  185-193; 
Owensboro  v.   Cumberland  Telephone  and  Telegraph 

Co.,  230  U.  S.  58,  64-66. 

3.  A  grant  of  a  franchise,  public  easement  or  other 
right,  whether  granted  in  perpetuity  or  for  a  limited  term, 
is  subject,  of  course,  to  revocation  or  forfeiture  when  the 
grantee  fails  to  comply  with  the  conditions  of  the  grant 
or  to  render  the  public  service  constituting  the  consider- 
ation therefor. 

New  York  Electric  Lines  Co.  v.  Empire  City  Subway 
Co.,  235  U.  S.  179,  194-196. 

4.  But,  when  a  person  has  accepted  a  grant  of  a  fran- 
chise, public  easement  or  other  right,  has  proceeded  with 


48 


reasonable  diligence  and  in  good  faith  to  comply  with  the 
terms  of  the  grant,  has  at  large  expense  constructed  the 
necessary  works,  and  is  rendering  the  public  service 
which  constitutes  the  real  consideration  for  the  grant, 
he  has  acquired  vested  and  accrued  property  rights  of 
which  he  may  not  be  deprived  arbitrarily  or  without  due 
process  of  law,  even  though  the  law,  or  ordinance  by 
which  the  grant  was  made  is  expressly  declared  to  be 
subject  to  be  altered,  amended  or  repealed. 

Owensboro  v.  Cumberland  Telephone  and  Telegraph 
Co.,  230  U.  S.  58,  71-75; 

Chicago,  Milwaukee  and  St.  Paul  Railroad  Co.  v.  Wis- 
consin, 238  U.  S.  491,  501-2. 

5.  Even  a  license,  although  originally  a  mere  personal, 
revocable  and  non-assignable  privilege,  becomes  irrevoc- 
able, when  the  licensee,  with  the  acquiescence  of  the 
licensor,  and  acting  under  the  authority  given  by  the 
license,  erects  upon  the  licensor's  lands,  at  his  own  ex- 
pense, works  or  structures  of  a  permanent  character, 
the  construction  of  which  was  contemplated  by  the 
licensor  when  the  license  was  given. 

Owensboro  v.  Cumberland  Telephone  and  Telegraph 
Company,  230  U.  S.  58,  64. 

On  this  point  see  also : 

Greenwood  Lake  and  Port  Jervis  R.  R.  Co.  v.  New 
York  and  Greenwood  Lake  R.  R.   Co.,   134  N.  Y. 
435,  440; 
Trustees  of  Southampton  v.  Jessup,  162  N.  Y.  122,  126 ; 
Stoner  v.  Zucker,  148  Cal.  516 ; 
Plimmer  v.  Wellington,  L.  R.  9  App.  Cas.  699. 


49 

The  Act  of  February  15,  1901,  considered  by  itself  alone, 
should  be  deemed  a  grant  of  authority  to  the  Secretary  of  the 
Interior  to  issue,  in  conformity  with  general  regulations  to 
be  adopted  by  him,  permits  giving  leave  or  license  to  the 
permittees,  not  merely  to  use  rights  of  way,  but  to  enter  upon 
public  lands,  forest  and  other  reservations  of  the  United  States 
and  there  to  construct  canals,  reservoirs,  works  for  generating 
and  lines  for  transmitting  electric  power,  and  telephone  and 
telegraph  lines,  all  of  which  are  works  of  a  permanent  char- 
acter involving  the  expenditure  or  investment  of  large  amounts 
of  capital  and  designed  to  promote  the  general  welfare  and 
to  aid  in  the  development  of  the  resources  and  industries  of 
the  country.  Permits  issued  pursuant  to  the  authority  con- 
ferred by  this  Act  would,  under  the  five  general  principles  of 
law  which  I  have  just  stated  and  the  authorities  cited  in  sup- 
port thereof,  be  deemed  to  operate,  not  as  mere  revocable 
licenses,  but  rather  as  grants  of  easements  or  rights  of  way  in 
perpetuity,  if  it  were  not  for  the  proviso  at  the  end  of  the 
statute  ''that  any  permission  given  by  the  Secretary  of  the 
Interior  under  the  provisions  of  this  act  may  be  revoked  by 
him  or  his  successor  in  his  discretion,  and  shall  not  be  held 
to  confer  any  right,  or  easement,  or  interest  in,  to,  or  over  any 
public  land,  reservation  or  park";  and  this  proviso  may  well 
be  deemed  to  be  simply  a  declaration  of  intention  on  the 
part  of  Congress  that  no  permit  issued  by  the  Secretary  of 
the  Interior  under  the  authority  of  this  act  shall,  of  itself 
and  prior  to  the  construction  of  the  contemplated  works, 
confer  anything  more  than  a  license  revocable  by  the  Sec- 
retary of  the  Interior  without  legislative  action  or  judicial 
proceedings,  and  not  a  declaration  of  intention  that  any 
permittee,  who,  pursuant  to  the  authority  given  to  him,  shall 
have  constructed  permanent  works  at  large  expense,  shall 
thereafter  hold  such  works  and  the  rights  of  way  whereon  they 
are  constructed  at  the  will  of  the  Secretary  of  the  Interior. 
For  it  is  apparent  that  the  principal  purpose  of  this  act  is 
to  authorize  the  granting  of  permission  to  use  rights  of  way 


50 


as  a  means  of  inducing  the  investment  of  capital  in  the  con- 
struction of  works  of  a  permanent  nature  to  be  used  largely 
in  permanent  service  of  the  public ;  and  a  construction  of  the 
final  proviso  in  this  Act  as  a  reservation  of  the  right  to  revoke 
licenses  or  permits  issued  under  its  provisions  after  the  con- 
struction of  the  contemplated  works  would  inevitably  defeat 
its  principal  purpose,  as  no  prudent  person  would  risk  the 
investment  of  his  capital  upon  such  terms.  This  would  be 
directly  in  conflict  with  the  settled  rule  of  construction  that 
a  statute  must  be  construed,  if  possible,  so  as  to  effectuate  the 
evident  object  of  the  legislature  in  its  enactment,  and  "so  as 
to  avoid  an  unjust  or  an  absurd  conclusion, ' '  even  if,  in  order 
to  do  so,  it  is  necessary  to  limit  the  application  of  general 
terms  and  to  indulge  the  presumption  ''that  the  legislature 
intended  exceptions  to  its  language,  which  would  avoid  results 
of  this  character." 

Hawaii  v.  Mankichi,  190  U.  S.  197,  212-218; 

Bernier  v.  Bernier,  147  U.  S.  242,  246. 

For  the  purpose  of  illustrating,  and  indicating  the  scope 
of,  the  rule  of  construction  which  I  have  just  stated  I  quote 
the  following  from  the  opinion  of  this  Court  in  Hawaii  v. 
Mankichi,  supra: 

''But  there  is  another  question  underlying  this  and  all 
other  rules  for  the  interpretation  of  statutes,  and  that 
is,  "What  was  the  intention  of  the  legislative  body  ?  With- 
out going  back  to  the  famous  case  of  the  drawing  of  blood 
in  the  streets  of  Bologna,  the  books  are  full  of  authorities 
to  the  effect  that  the  intention  of  the  lawmaking  power 
will  prevail,  even  against  the  letter  of  the  statute;  or, 
as  tersely  expressed  by  Mr.  Justice  Swayne,  in  Smythe  v. 
Fiske,  23  Wall.  374,  380,  23  L.  ed.  47,  49:  'A  thing  may 
be  within  the  letter  of  a  statute  and  not  within  its  mean- 
ing, and  within  ite  meaning,  though  not  within  its  letter. 
The  intention  of  the  lawmaker  is  the  law.'  A  parallel 
expression  is  found  in  the  opinion  of  Mr.  Chief  Justice 


51 


Thompson  of  the  supreme  court  of  the  state  of  New 
York  (subsequently  Mr.  Justice  Thompson  of  this  Court), 
in  People  v.  Utica  Ins.  Co.  15  Johns.  358,  381,  8  Am. 
Dec.  243 :  *  A  thing  which  is  within  the  intention  of  the 
makers  of  a  statute  is  as  much  within  the  statute  as  if 
it  were  within  the  letter;  and  a  thing  which  is  within 
the  letter  of  the  statute  is  not  within  the  statute,  unless 
it  be  within  the  intention  of  the  makers.' 

**  Without  going  farther,  numerous  illustrations  of  this 
maxim  are  found  in  the  reports  of  our  own  court.  No- 
where is  the  doctrine  more  broadly  stated  than  in  United 
States  V.  Kirby,  7  Wall.  482,  19  L.  ed.  278,  in  which  an 
act  of  Congress,  providing  that  if  '  any  person  shall  know- 
ingly and  wilfully  obstruct  or  retard  the  passage  of  the 
mail,  or  of  any  driver  or  carrier,'  was  held  not  to  apply 
to  a  state  officer  who  held  a  warrant  of  arrest  against  a 
carrier  for  murder,  the  court  observing  that  no  officer 
of  the  United  States  was  placed  by  his  position  above 
responsibility  to  the  legal  tribunals  of  the  country,  and  to 
the  ordinary  processes  for  his  arrest  and  detention  when 
accused  of  felony.  'All  laws,'  said  the  court,  'should  re- 
ceive a  sensible  construction.  General  terms  should  be 
so  limited  in  their  application  as  not  to  lead  to  injustice, 
oppression,  or  an  absurd  consequence.  It  will  always, 
therefore,  be  presumed  that  the  legislature  intended  ex- 
ceptions to  its  language,  which  would  avoid  results  of 
this  character.  The  reason  of  the  law  in  such  cases  should 
prevail  over  its  letter.'  A  case  was  cited  from  Plowden, 
holding  that  a  statute  which  punished  a  prisoner  as  a 
felon  who  broke  prison  did  not  extend  to  a  prisoner 
who  broke  out  when  the  prison  was  on  fire,  'for  he  is  not 
to  be  hanged  because  he  would  not  stay  to  be  burned.' 
Similar  language  to  that  in  Kirby 's  Case  was  used  in 
Carlisle  v.  United  States,  16  Wall.  147,  153,  21  L.  ed. 
426,  429. 

"In  Atkins  v.  Fibre  Disintegrating  Co.  18  Wall.  272, 
21  L.  ed.  841,  it  was  held  that  a  suit  in  personam  in 


52 


admiralty  was  not  a  'civil  suit'  within  the  11th  section 
of  the  judiciary  act,  though  clearly  a  civil  suit  in  the 
general  sense  of  that  phrase,  and  as  used  in  other  sec- 
tions of  the  same  act.  See  also  Re  Louisville  Underwriters, 
134  U.  S.  488,  33  L.  ed.  991,  10  Sup.  Ct.  Rep.  587.  So 
in  Heydenfeldt  v.  Daney  Gold  &  Silver  Min.  Co.  93 
U.  S.  634,  638,  23  L.  ed.  995,  996,  it  was  said  hy  Mr. 
Justice  Davis:  'If  a  literal  interpretation  of  any  part 
of  it  (a  statute)  would  operate  unjustly,  or  lead  to  absurd 
results,  or  be  contrary  to  the  evident  meaning  of  the  act 
taken  as  a  whole,  it  should  be  rejected.  There  is  no  better 
way  of  discovering  its  true  meaning,  when  expressions 
in  it  are  rendered  ambiguous  by  their  connection  with 
other  clauses,  than  by  considering  the  necessity  for  it, 
and  the  causes  which  induced  its  enactment.'  To  the 
same  effect  are  the  Church  of  Holy  Trinity  v.  United 
States,  143  U.  S.  457,  36  L.  ed.  226,  12  Sup.  Ct.  Rep. 
511,  in  which  many  cases  are  cited  and  reviewed,  and 
Lau  Ow  Bew  v.  United  States,  144  U.  S.  47,  59,  36  L.  ed. 
340,  345,  12  Sup.  Ct.  Rep.  517.  In  this  latter  case  it 
was  held  that  a  statute  requiring  the  permission  of  the 
Chinese  government,  and  the  identification  of  'every 
Chinese  person  other  than  a  laborer,  who  may  be  entitled 
by  said  treaty  or  this  act  (of  Congress)  to  come  within  the 
United  States,'  did  not  apply  to  'Chinese  merchants  al- 
ready domiciled  in  the  United  States,  who,  having  left 
the  country  for  temporary  purposes,  animo  revertendi, 
seek  to  re-enter  it  on  their  return  to  their  business  and 
their  homes.'  Said  the  Chief  Justice:  'Nothing  is  better 
settled  than  that  statutes  should  receive  a  sensible  con- 
struction, such  as  will  effectuate  the  legislative  intention, 
and,  if  possible,  so  as  to  avoid  an  unjust  or  an  absurd 
conclusion. ' 

"Two  recent  English  cases  are  instructive  in  this  con- 
nection :  In  Plumstead  Dist.  Bd.  of  Works  v.  Spackman, 
L.  R.  13  Q.  B.  Div.  878,  887,  it  was  said  by  the  Master 


53 

of  Rolls,  afterwards  Lord  Esher:  'If  there  are  no  means 
of  avoiding  such  an  interpretation  of  the  statute'  (as 
will  amount  to  a  great  hardship),  'a  judge  must  come  to 
the  conclusion  that  the  legislature  by  inadvertence  has 
committed  an  act  of  legislative  injustice ;  but,  to  my  mind, 
a  judge  ought  to  struggle  with  all  the  intellect  that  he 
has,  and  with  all  the  vigor  of  mind  that  he  has,  against 
such  an  interpretation  of  an  act  of  Parliament;  and, 
unless  he  is  forced  to  come  to  a  contrary  conclusion,  he 
ought  to  assume  that  it  is  impossible  that  the  legislature 
could  have  so  intended. '  See  also  Ex  parte  Walton,  L.  R. 
17  Ch,  Div.  746/' 

Plainly  there  is  as  much  reason  for  holding  that  the  declara- 
tion at  the  end  of  the  Act  of  February  15,  1901,  that  the  Sec- 
retary of  the  Interior  may,  in  his  discretion,  revoke  any  per- 
mission given  by  him  or  his  successor,  does  not  authorize  him 
to  forfeit  or  in  any  manner  recover  possession  of  a  right  of 
way  upon  which  permanent  works  have  been  constructed  or 
to  take,  destroy  or  compel  the  removal  of  permanent  works 
constructed  pursuant  to  such  permission,  as  there  was  for 
holding,  as  this  Court  did  in  Owensboro  v.  Cumberland  Tele- 
phone and  Telegraph  Company,  supra,  that  the  charter  power 
of  a  municipality  to  amend  and  repeal  its  ordinances  did  not 
include  the  right  to  forfeit  or  terminate  a  franchise  or  public 
easement  granted  by  an  ordinance  under  which  a  telephone 
system  had  been  constructed  and  was  being  operated. 

Plainly  also  the  declaration  at  the  end  of  the  Act  of  Feb- 
ruary 15,  1901,  that  ''any  permission  given  by  the  Secretary 
of  the  Interior  under  the  provisions  of  this  Act  *  *  *  shall  not 
be  held  to  confer  any  right,  or  easement,  or  interest  in,  to, 
or  over  any  public  land,  reservation,  or  park"  does  no  more 
than  to  make  clear  the  intent  of  Congress  that  the  permits 
to  be  issued  under  the  authority  of  this  Act  are  to  be  deemed 
licenses  rather  than  grants  of  easements; — this  declaration 
does  not  go  so  far  as  to  say  that  the  general  principles  of  law 


54 

and  equity,  under  which  even  parol  licenses  granted  without 
pecuniary  consideration  become  irrevocable  when  the  licensee, 
with  the  acquiescence  of  the  licensor  and  acting  under  the 
authority  given  by  the  license,  erects,  at  his  own  expense,  upon 
the  licensor's  land,  works  or  structures  of  a  public  character 
the  construction  of  which  was  contemplated  by  the  licensor 
when  the  license  was  given,  shall  not  apply  and  protect  the 
permittees  from  arbitrary  forfeiture  or  spoliation  of  such 
works  and  structures  and  the  rights  of  way  whereon  they  have 
been  constructed. 

That  the  doctrine  of  estoppel,  which  prevents  a  licensor 
from  revoking  his  license  when  such  action  on  his  part 
would  be  inequitable  and  manifestly  contrary  to  justice, 
applies  to  the  Government  of  the  United  States  as  well  as  to 
private  persons  is  established  by  the  following  authorities : 

(1)  United  States  v.  Stinson,  125  Fed.  907,  910;  wherein 
it  is  said  by  the  Circuit  Court  of  Appeals  of  the  Seventh 
Circuit  that  "the  substantial  considerations  underlying  the 
doctrine  of  estoppel  apply  to  government  as  well  as  to  indi- 
viduals. '  * 

(2)  United  States  v.  Stinson,  197  U.  S.  200;  wherein  this 
Court  affirmed  the  decision  reported  in  125  Fed.  907,  and  in 
its  opinion  recognized  and  applied  the  principle  declared  by 
the  Circuit  Court  of  Appeals. 

(3)  Walker  v.  United  States,  139  Fed.  409,  413;  affirmed 
in  148  Fed.  1022;  wherein  the  Circuit  Court,  in  an  opinion 
affirmed  by  the  Circuit  Court  of  Appeals  of  the  Fifth  Cir- 
cuit, says : 

* '  The  acts  or  omissions  of  its  officers,  if  they  be  author- 
ized to  bind  the  United  States  or  to  shape  its  course  of 
conduct  as  to  a  particular  transaction,  and  they  have 
acted  within  the  purview  of  their  authority,  may  in  a 
proper  case  work  an  estoppel  against  the  Government.'* 

(4)  Iowa  V.  Carr,  191  Fed.  257,  266-270;  wherein  the  Cir- 


55 


cuit  Court  of  Appeals  of  the  Eighth  Circuit  held,  (I  quote 

from  the  9th  paragraph  of  the  syllabus)  ; 

*'In  a  controversy  between  the  rights  of  a  state  or 
nation  and  those  of  a  citizen,  while  the  state  or  nation 
is  not  barred  by  mere  delay,  its  rights  are  measured  and 
adjudicated  by  the  doctrine  of  estoppel  and  the  other 
principles  and  rules  of  law  and  equity  applicable  to  the 
like  rights  of  a  citizen  under  similar  circumstances.'* 

(5)  Brent  v.  Bank  of  Washington,  10  Peters  596,  614; 
wherein  this  Court  says: 

*'Thus  compelled  to  come  into  equity  for  a  remedy  to 
enforce  a  legal  right,  the  United  States  must  come  as  other 
suitors,  seeking,  in  the  administration  of  the  law  of  equity, 
relief;  to  give  which,  courts  of  law  are  wholly  incom- 
petent, on  account  of  the  legal  bar  interposed  by  the  bank. 
This  court,  in  The  United  States  v.  Mitchell  (9  Peters, 
743),  have  recognized  the  principle  in  the  common  law 
that  though  the  law  gives  the  king  a  better  or  more  con- 
venient remedy,  he  has  no  better  right  in  court  than  the 
subject  through  whom  the  property  claimed  comes  to  his 
hands.  (2  Co.  Inst.,  573;  2  Ves.,-  Sen.,  296,  297;  Hard., 
60,  460.)  This  principle  is  also  carried  into  all  the  stat- 
utes, by  which  the  appropriate  courts  are  authorized  to 
decide,  and  under  which  they  do  decide  on  the  rights  of 
a  subject  in  a  controversy  with  the  king,  according  to 
equity  and  good  conscience  between  subject  and  subject. 
(7  Co.,  19;  6  Hard.  27,  170,  230,  502;  4  Co.  Inst,  190.) '' 

(6)  Plimmer  v.  Wellington,  L.  R.,  9  App.  Cas.  699 ;  wherein 
the  Privy  Council  held  that  Plimmer,  who,  with  permission 
of  the  Government,  had  constructed,  on  land  covered  by  tide 
water  the  title  to  which  was  vested  in  the  Government  of 
New  Zealand,  a  jetty  and  warehouse  and  had  reclaimed  from 
the  sea  certain  land  whereon  his  improvements  were  con- 
structed, thereby  acquired  an  interest  or  estate  in  such  lands, 
although  he  had  originally  taken  possession  of  said  lands  under 


56 


a  revocable  license  for  the  special  purpose  of  a  wharfinger, 
his  license  having  become  irrevocable  by  his  construction  of 
said  improvements  with  the  consent  and  in  part  at  the  request 
of  the  Government. 

From  the  foregoing  analysis  of  the  Act  of  February  15, 
1901,  construed  as  if  it  stood  alone  and  unaided  by  the  earlier 
Acts  of  Congress  relating  to  rights  of  way,  it  is  evident  that 
the  Act  of  February  15,  1901,  is  not  inconsistent  or  in  conflict 
with  the  earlier  Acts,  whose  construction  and  operation  have 
been  considered  under  Propositions  No.  1  and  No,  2,  for  the 
following  reasons: 

1.  The  Act  of  February  15,  1901,  (by  expressly  author- 
izing the  issuance  of  permits  granting  authority  to  the 
permittees  to  construct,  upon  the  public  lands,  forest  and 
other  reservations  of  the  United  States,  reservoirs  and 
canals,  while  it  is  silent  upon  the  subject  of  the  right  to 
appropriate  water  for  beneficial  uses)  assumes  by  neces- 
sary implication  the  right  to  appropriate,  store,  convey 
and  use  water  for  every  beneficial  use,  either  under  the 
law^s  of  the  United  States  or  the  laws  of  the  several  states, 
and,  therefore,  is  clearly  consistent  with  sections  2339  and 
2340  of  the  United  States  Revised  Statutes,  the  Act  of 
March  3,  1877,  and  the  Act  of  June  4,  1897,  in  so  far  as 
they  grant,  as  against  the  United  States  in  its  capacity 
as  riparian  proprietor,  the  right  to  appropriate  and  take 
the  water  of  non-navigable  lakes,  rivers  and  streams  upon 
the  public  lands  and  forest  reservations  of  the  United 
States ; 

2.  The  result  obviously  intended  by  the  Act  of  Feb- 
ruary 15,  1901,  and  actually  accomplished  whenever  any 
citizen,  association  or  corporation  of  the  United  States, 
acting  under  the  authority  of  a  permit  issued  pursuant 
to  its  provisions,  constructs  and  puts  to  use  a  reservoir 
or  canal,  namely,  the  acquisition  of  a  vested  and  accrued 
right  of  way  for  such  reservoir  or  canal,  is  exactly  the 
same  as  the  result  accomplished  by  the  construction  and 


57 

beneficial  use  of  a  reservoir  or  canal  under  the  provisions 
of  sections  2339  and  2340  of  the  United  States  Revised 
Statutes,  the  Act  of  March  3,  1891,  and  the  amendment 
thereto  contained  in  the  second  section  of  the  Act  of 
May  11,  1898;  and,  therefore,  said  Act  of  February  15, 
1901,  is  consistent  with  the  earlier  Acts  of  Congress  last 
mentioned  in  respect  to  the  ultimate  purpose  or  object 
sought  to  be  accomplished  by  them;  and 

3.  The  only  difference  between  the  Act  of  February 
15,  1901,  and  sections  2339  and  2340  of  the  United  States 
Revised  Statutes  and  the  Act  of  March  3,  1891,  and  the 
amendment  thereto  contained  in  the  Act  of  May  11,  1898, 
so  far  as  the  latter  relate  to  rights  of  way  for  reservoirs 
and  canals,  lies  in  the  procedure  prescribed  for  the  accom- 
plishment of  their  ultimate  purposes  or  objects,  viz,  the 
vesting  and  accruing  of  rights  of  way  and  the  appro- 
priation and  utilization  of  the  waters  of  non-navigable 
lakes,  rivers  and  streams  upon  the  public  lands  and  forest 
reservations  of  the  United  States;  and  the  Act  of  Feb- 
ruary 15,  1901,  contains  no  provision  expressing  the  pur- 
pose or  intent  of  Congress  to  make  the  procedure  thereby 
provided  for  exclusive  of  the  procedure  contemplated  and 
provided  for  in  its  earlier  Acts  last  mentioned ;  and,  there- 
fore, the  Act  of  February  15,  1901,  merely  adds  to  the 
procedure  authorized  by  the  aforesaid  earlier  Acts  a 
new  permissive  procedure  and,  consequently,  is  consistent 
with  the  continued  existence  of  said  earlier  Acts. 

This  branch  of  the  argument  may  be  summed  up  as  follows : 

1.  The  Act  of  February  15,  1901,  does  not  expressly  repeal 
the  Acts  of  Congress  considered  under  Propositions  No.  1  and 
No.  2. 

2,  The  weight  of  authority  and  the  practice  of  the  Depart- 
ment of  the  Interior  support  the  position  that  the  Act  of  Feb- 
ruary 15,  1901,  does  not  repeal  by  implication  the  earlier  Acts 
considered  under  Propositions  No.  1  and  No.  2. 


58 


3.  A  construction  of  the  Act  of  February  15,  1901,  in 
harmony  with  the  earlier  Acts  considered  under  Propositions 
No.  1  and  No.  2,  if  such  construction  be  possible,  is  required 
by  the  law  as  declared  by  this  Court. 

4.  The  Act  of  February  15,  1901,  does  not  cover  any  of  the 
essential  features  of  the  earlier  Acts  considered  under  Propo- 
sitions No.  1  and  No.  2,  but,  on  the  contrary,  assumes  the 
continued  existence  of  the  substantive  rights  which  are  recog- 
nized or  granted  by  said  earlier  Acts. 

5.  The  Act  of  February  15,  1901,  considered  and  construed 
in  connection  with  the  earlier  Acts  of  Congress  relating  to  the 
same  subject  is  in  no  respect  in  conflict  with  any  of  the  Acts 
dealt  with  under  Propositions  No.  1  and  No.  2,  but,  on  the 
contrary,  supplements  them  by  conferring  additional  admin- 
istrative authority  upon  the  Secretary  of  the  Interior  and 
authorizing  the  latter  to  adopt  a  procedure  whereby  a  person 
desirous  of  acquiring  a  right  of  way  may  give  public  notice 
of  his  location  and  obtain  a  determination  in  advance  of  con- 
struction that  such  right  of  way  has  been  properly  located, 
whether  the  lands  upon  which  such  right  of  way  is  located 
are  surveyed  or  unsurveyed,  or  it  is  impracticable  or  incon- 
venient for  any  other  reason  to  meet  the  conditions  prescribed 
by  section  19  of  the  Act  of  March  3,  1891. 

6.  The  Act  of  February  15,  1901,  construed  as  if  it  stood 
alone  and  unaided  by  the  earlier  Acts  considered  under  Propo- 
sitions No.  1  and  No.  2,  but  in  the  light  of  the  general  prin- 
ciples of  law  to  which  reference  has  been  made,  is  not  in  con- 
flict with  the  latter  because  it  assumes  the  continued  existence 
of  the  right  to  appropriate  water  for  beneficial  uses  under  the 
laws  of  the  United  States  or  of  the  several  states,  plainly  in- 
tends the  accomplishment  of  the  same  ultimate  purpose  or 
object,  namely,  the  acquisition  and  use  of  vested  and  accrued 
rights  of  way,  and  merely  adds  a  new  procedure,  permissive 
in  its  nature,  for  the  accomplishment  of  such  ultimate  purpose 
or  object  without  expressing  any  intention  to  make  such  pro- 
cedure exclusive  of  the  procedure  provided  for  in  earlier 
Acts. 


59 


The  Act  of  February  15,  1901,  containing  no  expression  of 
a  purpose  to  repeal  amy  of  the  Acts  considered  under  Propo- 
sitions No.  1  and  No.  2,  and  neither  covering  any  of  their 
essential  features  nor  being  in  conHict  with  any  of  their  pro- 
visions, and,  instead  of  being  intended  as  a  substitute  for 
them,  assuming  their  continued  existence  and  supplementing 
their  administrative  provisions,  plainly,  under  the  rule  de- 
clared by  this  Court  in  Town  of  Red  Rock  v.  Henry,  supra, 
is  not  to  be  construed  as  substantive  legislation  superseding 
or  by  implication  repealing  any  of  the  Acts  of  Congress  con- 
sidered under  Propositions  No.  1  and  No.  2. 


PROPOSITION  NO.  4. 

The  aforesaid  Act  of  February  15,  1901  {assuming  that  it 
is  substantive  legislation  superseding  and  by  implicatiom. 
repealing  the  other  Acts  of  Congress  already  mentioned)  is 
unconstitutional  as  involving  an  unauthorized  delegation,  to 
executive  officers  of  the  United  States,  by  Congress,  of  power 
specifically  and  exclusively  conferred  by  the  Constitution  upon 
the  latter. 

''The  Congress  shall  have  Power  to  dispose  of  and 
make  all  needful  Rules  and  Regulations  respecting  the 
Territory  or  other  Property  belonging  to  the  United 
States ;  and  nothing  in  this  Constitution  shall  be  so  con- 
strued as  to  Prejudice  any  Claims  of  the  United  States, 
or  of  any  particular  State.'' 

Constitution,  article  IV,  section  3,  clause  2. 

The  power  to  dispose  of  the  public  lands,  whether  specially 
reserved  or  not,  which  includes  of  course  the  power  to 
relinquish  riparian  rights  incident  to  the  ownership  of  such 
lands  and  to  grant  rights  of  way  and  other  easements  and 
servitudes  affecting  the  same,  and  the  power  to  make  rules 
and  regulations  respecting  such  lands  are,  by  this  provision 


60 


of  the  Constitution,  specifically  conferred  upon  Congress.  No 
such  power  is  conferred  on  the  President  or  the  courts  of  the 
United  States. 

These  powers,  although  in  some  sense  proprietary  rather 
than  governmental,  are,  nevertheless,  by  general  consensus  of 
opinion  as  evidenced  by  the  uniform  practice  of  the  govern- 
ment of  the  United  States  and  the  governments  of  the  several 
states,  deemed  to  be  legislative  in  their  nature.  But,  whether 
these  powers  be  deemed  strictly  or  only  quasi  legislative,  hav- 
ing been  delegated  to  Congress  exclusively,  they  are  equally 
within  the  reason  and  subject  to  the  operation  of  the  rule  that, 

'  *  The  power  to  whose  judgment,  wisdom,  and  patriot- 
ism this  high  prerogative  has  been  intrusted  cannot 
relieve  itself  of  the  responsibility  by  choosing  other 
agencies  upon  which  the  power  shall  be  devolved,  nor 
can  it  substitute  the  judgment,  wisdom,  and  patriotism 
of  any  other  body  for  those  to  which  alone  the  people 
have  seen  fit  to  confide  this  sovereign  trust." 

Cooley's  Constitutional  Limitations  (7th  ed.),  page 
163. 

To  those  of  us  who  believe  in  a  government  of  law  made, 
executed,  construed  and  enforced  by  the  chosen  representatives 
of  a  free,  honorable  and  self-respecting  people,  a^  the  best 
means  of  establishing  justice,  insuring  domestic  tranquility, 
providing  for  the  common  defense,  promoting  the  general 
welfare  and  securing  the  blessings  of  liberty  to  ourselves  and 
our  posterity,  the  most  vital  principle,  the  chief  merit,  and 
the  most  essential  safeguard  of  the  liberty  of  the  citizen 
embodied  in  our  system  of  Constitutional  government  is  the 
division  of  all  the  powers  of  government  into  the  three  great 
classes,  the  legislative,  the  executive  and  the  judicial,  and  the 
vesting  of  each  one  of  these  three  classes  of  powers  in  a  sep- 
arate and  distinct  branch  of  the  government.  Without  this 
feature  all  of  the  express  limitations  upon  the  powers  of  gov- 
ernment contained  in  the  Constitution  would  be  ineffective 
checks  upon  the  exercise  of  arbitrary  and  despotic  power. 


61 


The  importance  of  the  division  of  the  powers  of  govern- 
ment between  its  legislative,  executive  and  judicial  branches 
has  been  recognized  and  declared  by  this  Court  in  many 
well-considered  opinions. 

In  Kilboum  v.  Thompson,  103  U.  S.  168,  190-192,  this 
Court,  in  its  opinion  delivered  by  Mr.  Justice  Miller,  said : 

"It  is  believed  to  be  one  of  the  chief  merits  of  the 
American  system  of  written  constitutional  law,  that  all 
the  powers  entrusted  to  governments,  whether  state  or 
national,  are  divided  into  the  three  grand  departments 
of  the  executive,  the  legislative  and  the  judicial.  That 
the  functions  appropriate  to  each  of  these  branches  of 
government  shall  be  vested  in  a  separate  body  of  public 
servants,  and  that  the  perfection  of  the  system  requires 
that  the  lines  which  separate  and  divide  these  depart- 
ments shall  be  broadly  and  clearly  defined.  It  is  also 
essential  to  the  successful  working  of  this  system,  that 
the  persons  entrusted  with  power  in  any  one  of  these 
branches  shall  not  be  permitted  to  encroach  upon  the 
powers  confided  to  the  others,  but  that  each  shall  by  the 
law  of  its  creation  be  limited  to  the  exercise  of  the 
powers  appropriate  to  its  own  department  and  no  other. 
To  these  general  propositions  there  are  in  the  Constitu- 
tion of  the  United  States  some  important  exceptions. 
Oine  of  these  is,  that  the  President  is  so  far  made  a  part 
of  the  legislative  power,  that  his  assent  is  required  to 
the  enactment  of  all  statutes  and  resolutions  of  Congress. 
''This,  however,  is  so  only  to  a  limited  extent,  for  a 
bill  may  become  a  law  notwithstanding  the  refusal  of 
the  President  to  approve  it,  by  a  vote  of  two-thirds  of 
each  House  of  the  Legislature. 

* '  So,  also,  the  Senate  is  made  a  partaker  in  the  func- 
tions of  appointing  officers  and  making  treaties,  which 
are  supposed  to  be  properly  executive,  by  requiring  its 
consent  to  the  appointment  of  such  officers  and  the 
ratification  of  treaties.     The   Senate   also  exercises  the 


62 

judicial  power  of  trying  impeachments,  and  the  House 
of  preferring  articles  of  impeachment. 

''In  the  main,  however,  that  instrument,  the  model  on 
which  are  constructed  the  fundamental  laws  of  the  States, 
has  blocked  out  with  singular  precision,  and  in  bold 
lines,  in  its  three  primary  Articles,  the  allotment  of 
power  to  the  executive,  the  legislative,  and  judicial  de- 
partments of  the  government.  It  also  remains  true,  as 
a  general  rule,  that  the  powers  confided  by  the  Constitu- 
tion to  one  of  these  departments  cannot  be  exercised  by 
another. 

"It  may  be  said  that  these  are  truisms  which  need  no 
repetition  here  to  give  them  force.  But  while  the  experi- 
ence of  almost  a  century  has  in  general  shown  a  wise  and 
commendable  forbearance  in  each  of  these  branches  from 
encroachments  upon  the  others,  it  is  not  to  be  denied 
that  such  attempts  have  been  made,  and  it  is  believed  not 
always  without  success.  The  increase  in  the  number  of 
States,  in  their  population  and  wealth,  and  in  the  amount 
of  power,  if  not  in  its  nature  to  be  exercised  by  the 
Federal  Government,  presents  powerful  and  growing 
temptations  to  those  to  whom  that  exercise  is  intrusted, 
to  overstep  the  just  boundaries  of  their  own  department, 
and  enter  upon  the  domain  of  one  of  the  others,  or  to 
assume  powers  not  intrusted  to  either  of  them." 

In  Field  v.  Clark,  143  U.  S.  649,  692,  this  Court  said : 

**That  Congress  cannot  delegate  legislative  power  to 
the  President  is  a  principle  universally  recognized  as 
vital  to  the  integrity  and  maintenance  of  the  system  of 
government  ordained  by  the  Constitution." 

In  the  dissenting  opinion  in  this  case,  written  by  Mr. 
Justice  Lamar  with  whom  concurred  Mr.  Chief  Justice  Fuller, 
it  is  said  (page  697)  : 


63 

'  *  The  Chief  Justice  and  myself  concur  in  the  judgment 
just  announced.  But  the  proposition  maintained  in  the 
opinion,  that  the  third  section,  known  as  the  reciprocity 
provision,  is  valid  and  constitutional  legislation,  does  not 
command  our  assent,  and  we  desire  to  state  very  briefly 
the  ground  of  our  dissent  from  it.  We  think  that  this 
particular  provision  is  repugnant  to  the  first  section  of 
the  first  article  of  the  Constitution  of  the  United  States, 
which  provides  that  '  all  legislative  powers  herein  granted 
shall  be  vested  in  a  Congress  of  the  United  States  which 
shall  consist  of  a  Senate  and  House  of  Representatives.' 
That  no  part  of  this  legislative  power  can  be  delegated  by 
Congress  to  any  other  department  of  the  government, 
executive  or  judicial,  is  an  axiom  in  constitutional  law, 
and  is  universally  recognized  as  a  principle  essential  to 
the  integrity  and  maintenance  of  the  system  of  govern- 
ment ordained  by  the  Constitution.  The  legislative  power 
must  remain  in  the  organ  where  it  is  lodged  by  that 
instrument.  We  think  that  the  section  in  question  does 
delegate  legislative  power  to  the  executive  department, 
and  also  commits  to  that  department  matters  belonging  to 
the  treaty-making  power,  in  violation  of  paragraph  two 
of  the  second  section  of  article  two  of  the  Constitution.'* 

The  principle  that  Congress  cannot  delegate  to  the  courts, 
or  to  any  other  tribunal,  body  or  officer,  powers  which  are 
strictly  and  exclusively  legislative,  which  was  declared  by 
Chief  Justice  Marshall  in, 

Wayman  v.  Southard,  10  Wheat.  1,  42, 

has  never  been  questioned  by  this  Court.  But  many  questions 
of  great  difficulty  and  delicacy  have  arisen  concerning  the 
precise  boundaries  between  the  legislative,  the  executive  and 
the  judicial  powers,  because  the  Legislature,  in  the  exercise  of 
the  power  conferred  upon  it,  must,  as  a  matter  of  practical 
necessity,  commit  something  to  the  discretion  of  the  executive 
and  judicial  branches. 


64 

Because  of  the  great  delicacy  and  difficulty  of  the  question 
whether  or  not  the  Act  of  February  15,  1901,  is  an  unconsti- 
tutional delegation  to  executive  officers  of  power  which  is 
legislative  in  its  nature  and  exclusively  conferred  by  the 
Constitution  upon  Congress,  it  is  of  the  highest  importance 
that  there  be  presented  here  such  rules  as  have  been  estab- 
lished by  this  Court  in  determining  the  boundary  between 
legislative  and  executive  power.    These  rules  are  as  follows : 

1.  The  legislature  alone  can  make  law ;  and  the  power 
to  make  law  cannot  be  delegated. 

"Wayman  v.  Southard,  supra. 

Union  Bridge  Co.   v.  United  States,  204  U.   S.  364, 

378-388. 

2.  ''The  legislature  must  declare  the  policy  of  the 
law  and  fix  the  legal  principles  which  are  to  control  in 
given  cases". 

Mutual  Film  Corporation  v.  Industrial  Commission  of 

Ohio,  236  U.  S.  230,  245. 
Interstate  Commerce  Commission  v.  Goodrich  Transit 

Co.,  224  U.  S.  194,  214. 

3.  The  legislature,  having  enacted  a  law,  may  delegate 
to  an  executive  or  administrative  board,  commission  or 
officer  ' '  a  power  to  determine  some  fact  or  state  of  things 
upon  which  the  law  makes,  or  intends  to  make,  its  own 
action  depend". 

Union  Bridge  Co.  v.  United  States,  supra. 
Monongahela  Bridge  Co.  v.  United  States,  216  U.  S. 

177,  192-3. 
Field  V.  Clark,  supra. 
Miller  v.  Mayor  etc.  of  New  York,  109  U.  S.  385,  394. 

4.  The  legislature,  having  declared  the  policy  of  the 
law  and  prescribed  the  legal  principles  which  are  to 
control  in  given  cases,  may  delegate  to  executive  and 


65 

administrative  officers  and  bodies  power  to  ascertain  the 
facts  and  conditions  to  which  such  policy  and  principles 
apply. 

Mutual  Film  Corporation  v.  Industrial  Commission  of 

Ohio,  supra. 
Buttfield  V.  Stranahan,  192  U.  S.  470,  496. 
Interstate  Commerce  Commission  v.  Goodrich  Transit 

Co.,  supra. 

5.  The  legislature,  having  enacted  a  statute  declaring 
the  policy  and  prescribing  the  principles  of  law  to  govern 
a  particular  subject  matter,  may  delegate  to  executive 
and  administrative  officers  or  bodies  the  power  to  adopt 
reasonable  regulations  appropriate  for  effectuating  such 
policy  and  principles  and  not  in  conflict  with  the  law 
itself. 

Ex  Parte  Kollock,  165  U.  S.  526,  533. 

Butte  City  Water  Co.  v.  Baker,  196  U.  S.  119,  125-7. 

United  States  v.  Grimaud,  220  U.  S.  506. 

Light  V.  United  States,  220  U.  S.  523. 

6.  The  legislature,  however,  cannot  delegate  to  an 
executive  or  administrative  officer  or  body  authority  to 
make,  alter  or  amend  a  law  or  to  make  or  enforce  regula- 
tions in  conflict  with  the  law. 

United  States  v.  Eaton,  144  U.  S.  677. 

United  States  v.  Grimaud,  supra. 

Harmon  v.  State,  66  Ohio  St.  249,  58  L.  R.  A.  618. 

State  V.  Burdge,  95  Wis.  390,  37  L.  R.  A.  157. 

O'Neil  V.  American  Fire  Ins.  Co.,  166  Penn.  St.  72, 

26  L.  R.  A.  715. 
Mutual  Film  Corporation  v.  Industrial  Commission  of 

Ohio,  supra. 

The  Act  of  February  15,  1901,  if  it  be  construed  to  be  in 
conflict  with  the  others  Acts  of  Congress  considered  under 


66 


Propositions  No.  1  and  No.  2,  or  as  having  been  intended  as 
a  substitute  for  such  Acts,  repeals  all  of  the  earlier  general 
laws  of  Congress  whereby  Congress  had  itself  established'  all 
needful  rules  and  regulations  respecting  the  appropriation 
of  water  and  the  appropriation  and  acquisition  of  rights  of 
way  for  reservoirs  and  canals  upon  the  public  lands  and  reser- 
vations of  the  United  States  and,  consequently,  must  be  con- 
strued without  any  aid  derived  from  such  Acts.  So  construed 
the  Act  of  February  15,  1901,  is  a  naked  delegation  of  au- 
thority to  the  Secretary  of  the  Interior  to  adopt  general 
regulations  and,  in  accordance  therewith,  to  permit  the  use 
of  rights  of  way  through  the  public  lands,  forest  and  other 
reservations  of  the  United  States  for  the  purposes  therein 
specified,  without  any  other  limitation  than  that  contained 
in  the  first  proviso,  namely,  ''that  such  permits  shall  be 
allowed  within  or  through  any  of  said  parks  or  any  forest, 
military,  Indian,  or  other  reservation  only  upon  the  approval 
of  the  chief  officer  of  the  Department  under  whose  supervision 
such  park  or  reservation  falls  and  upon  a  finding  by  him  that 
the  same  is  not  incompatible  with  the  public  interest".  This 
Act  neither  declares  any  policy  of  law  nor  fixes  any  legal 
principle  to  control  the  Secretary  of  the  Interior  in  adopt- 
ing or  enforcing  general  regulations  or  in  granting  or  refus- 
ing to  grant  a  permit  for  the  use  of  any  right  of  way.  This 
Act,  instead  of  expressing  the  will  of  Congress  that  the  use 
of  rights  of  way  shall  be  permitted  upon  certain  terms  or  con- 
ditions and  delegating  to  the  Secretary  of  the  Interior  the 
power  to  determine  the  facts  or  state  of  things  upon  which 
its  action  is  to  depend,  leaves  it  to  the  discretion  of  the 
Secretary  of  the  Interior  to  grant  or  refuse  to  grant  permis- 
sion to  use  a  right  of  way  without  reference  to  the  facts  upon 
which  application  is  made.  The  general  regulations  to  be 
fixed  by  the  Secretary  of  the  Interior  under  this  Act  are  not 
expressly  required  to  be  in  harmony  with  its  provisions  or  to 
be  such  as  are  appropriate  for  effectuating  any  policy  or 


67 

principle  of  law  expressed  therein,  and  resort  to  implication 
is  in  vain  for  the  reason  already  mentioned  that  neither  policy 
of  law  nor  legal  principle  is  declared  in  the  Act,  unless  it  be 
construed  as  declaring  the  intention  of  Congress  that  the  use 
of  rights  of  way  for  the  purposes  specified  therein  shall  be 
permitted  in  every  instance  except  when  such  use  is  incom- 
patible with  the  public  interest.  This  Act,  at  the  time  of  its 
adoption  and  in  the  absence  of  general  regulations  fixed  by 
the  Secretary  of  the  Interior,  was  (if  we  assume  that  it  super- 
seded and  repealed  the  earlier  legislation  and  did  not  impose 
upon  the  Secretary  of  the  Interior  the  duty  of  permitting 
the  use  of  rights  of  way  in  every  instance  except  when  such 
use  was  incompatible  with  the  public  interest)  wholly  devoid 
of  every  essential  attribute  of  a  law  as  it  contained  no  rule 
of  conduct,  nor  declaration  of  legal  policy  or  principle  nor 
any  rule  or  regulation  governing  the  disposal  or  use  of  the 
territory  or  other  property  belonging  to  the  United  States. 

Even  if  the  Act  of  February  15,  1901,  should  be  con- 
strued as  imposing  upon  the  Secretary  of  the  Interior  the 
duty  of  permitting  the  use  of  rights  of  way  through  the 
public  lands,  forest  and  other  reservations  of  the  United 
States  upon  the  application  of  any  citizen,  association  or 
corporation  in  every  instance  when  such  use  ''is  not  incom- 
patible with  the  public  interest'',  it  would  still  involve  a 
delegation  to  the  Secretary  of  the  Interior  of  the  right  and 
power  to  determine  what  the  ''public  interest"  requires, 
because  it  neither  contains  a  declaration  of  any  legal  policy 
or  principle  in  accordance  with  which  the  Secretary  of  the 
Interior  may  be  guided  in  determining  what  is  or  is  not 
compatible  with  the  public  interest  nor  is  capable  of  being 
aided  in  this  respect  by  any  other  legislation  upon  the 
subject.  "Public  interest"  as  used  in  this  statute  obviously 
means  "public  policy".  What  "public  policy"  is  can  only 
be  determined  by  reference  to  the  law  of  the  land  embodied 
in  the  Constitution,  statutes  enacted  by  the  legislature,  and 
the  rules  of  the  common  law  and  general  principles  of  juris- 


68 

prudence  declared  in  judicial  decisions.  It  is  the  province 
of  the  legislature  to  determine  what  ''public  policy"  shall 
be  and  what  the  ''public  interest"  requires.  These  propo- 
sitions are,  I  submit,  fully  supported  by  the  following 
authorities : 

Vidal  et  al.  v.  Girard's  Executors,  2  How.  127,  197-8; 

License  Tax  Cases,  5  Wall.  462; 

St.  Louis  Mining  and  Milling  Co.  v.  Montana  Mining 

Co.,  171  U.  S.  650,  655-6; 
Hartford  Fire  Insurance  Co.  v.  Chicago,  M.  &  St.  P. 

Ey.  Co.,  175  U.  S.  91,  100; 
Baltimore  and  Ohio  S.  W.  Ry.  Co.  v.  Voigt,  176  U.  S. 

498,  505; 
Grafton  County  E.  L.  &  P.  Co.  v.  State,  77  N.  H.  539, 

94  Atl.  193,  194; 
Julien  V.  Model  Building,  L.  &  I.  Assn.,  116  Wis.  79 ; 

61  L.  R.  A.  668,  672; 
Greenhood  on  Public  Policy  in  the  Law  of  Contracts, 

Rule  CXL,  citing  Pierce  v.  Randolph,  12  Tex.  290. 

From  the  foregoing  analysis  of  the  Act  of  February  15, 
1901,  considered  in  connection  with  its  construction  set  forth 
on  pages  45  to  57,  supra,  it  plainly  appears  that  the  powers 
delegated  thereby  to  the  Secretary  of  the  Interior  are  legis- 
lative in  character  and  that  Congress  (assuming  that  it  in- 
tended this  Act  to  operate  as  a  repeal  of  its  aforesaid  earlier 
Acts)  attempted  thereby  to  make  a  delegation  to  the  Secre- 
tary of  the  Interior  of  the  entire  power  conferred  upon  it  by 
the  second  clause  of  section  3  of  article  IV  of  the  Constitu- 
tion, so  far  as  that  clause  applies  to  the  subject  matter  of  this 
Act,  namely,  rights  of  way  over  public  lands  and  reservations 
of  the  United  States  for  the  purposes  therein  specified. 

Furthermore,  an  exercise  of  the  power  attempted  by  said 
Act  of  February  15,  1901,  to  be  delegated  to  the  Secretary 
of  the  Interior  (namely,  the  power  to  permit  or  refuse  to 
permit,  in  his  discretion,  and  to  regulate,  the  occupancy  and 
use  of  rights  of  way  for  reservoirs  and  canals  through  the 


69 

public  lands  and  reservations  of  the  United  States)  involves 
an  exercise  of  a  discretionary  power  to  permit  or  prevent 
the  use  of  the  waters  of  lakes,  rivers  and  streams  on  the  vast 
areas  of  the  public  lands  and  reservations  of  the  United 
States  for  any  public  or  private  use  in  the  public  land  states 
and  thus  to  control,  interfere  with,  or  prevent,  the  exercise 
by  the  several  states,  wherein  are  situate  public  lands  and 
reservations,  of  their  undoubted  constitutional  right  and 
power  to  provide  for  such  vital  public  services  as  the  fur- 
nishing of  water,  light  and  powei^  for  their  inhabitants. 
Surely  the  power  granted  to  Congress  'Uo  dispose  of  and 
make  all  needful  rules  and  regulations  respecting  the  ter- 
ritory or  other  property  belonging  to  the  United  States" — a 
power  which  is  primarily  proprietary  rather  than  govern- 
mental— could  not  have  been  intended  to  include  the  power 
to  prevent  the  states  from  exercising  any  of  the  necessary 
governmental  powers  reserved  to  them  by  the  tenth  amend- 
ment to  the  Constitution. 

Consequently  this  Act  of  February  15,  1901,  constitutes, 
not  only  an  attempt  on  the  part  of  Congress  to  delegate  powers 
vested  in  it  exclusively  by  the  Constitution,  but  also  an 
attempt  on  the  part  of  Congress  to  authorize  the  Secretary  of 
the  Interior  to  usurp  powers  which  under  the  Constitution 
are  not  delegated  to  the  United  States,  but,  on  the  contrary, 
are  reserved  to  the  states.  That  the  Secretary  of  the  Interior 
and  the  Secretary  of  Agriculture  have  not  been  slow  to  act 
upon  the  supposed  authority  of  this  Act  of  February  15,  1901, 
and  to  usurp,  under  the  color  of  authority  thereby  conferred, 
vast  powers  of  regulation  of  subjects  concerning  which  Con- 
gress itself  has  no  power  to  legislate  is  disclosed  by  the  reg- 
ulations printed  in  the  transcript,  pages  32  to  134,  and  dis- 
cussed at  length  in  the  brief  of  appellant,  The  Beaver  River 
Power  Company. 

As  authorities  for  the  proposition  that  Congress  does  not 
possess  the  power  to  regulate  or  to  interfere  with  the  appro- 
priation or  use  of  any  waters  within  the  boundaries  of  any 
state,  except  so  far  as  it  may  be  necessary  to  prevent  inter- 


70 


ference  with  or  obstruction  of  navigable  waters  capable  of 
being  used  as  a  means  of  interstate  or  foreign  commerce,  or 
to  prevent  interference  with  or  destruction  of  the  rights  of 
the  United  States  as  owner  of  riparian  lands,  I  rely  upon  the 
following  cases,  viz: 

United  States  v.  Rio  Grande  Dam  and  Irrigation  Com- 
pany, 174  U.  S.  690; 

Kansas  v.  Colorado,  206  U.  S.  46,  85-96,  117; 

Hudson  County  Water  Company  v.  McCarter,  209 
U.  S.  349; 

United  States  v.  E.  C.  Knight  Company,  156  U.  S.  1. 


PROPOSITION  NO.  5. 

The  aforesaid  Act  of  Congress  of  February  15, 1901,  (assum- 
ing that  it  is  substantive  legislation  superseding  and  by  impli- 
cation repealing  the  other  aforesaid  Acts  of  Congress  and  is 
not  unconstitutional)  is  itself  superseded  and  repealed,  so  far 
as  it  applies  to  rights  of  way  for  reservoirs  and  aqueducts 
appropriated  for  '' municipal' ' ,  that  is  to  say  public  or  govern- 
mental uses,  by  section  4  of  an  Act  entitled,  "An  Act  Pro- 
viding for  the  Transfer  of  Forest  Reserves  from  the  Depart- 
ment of  the  Interior  to  the  Department  of  Agriculture", 
approved  February  1,  1905,  (33  U.  S.  Stat,  at  L.,  628). 

The  Act  of  February  1,  1905,  (33  U.  S.  Stat,  at  L.,  628— 
see  Appendix  page  21)  provides,  in  section  4,  ''that  rights  of 
way  for  the  construction  and  maintenance  of  dams,  reservoirs, 
water  plants,  ditches,  flumes,  pipes,  tunnels,  and  canals,  within 
and  across  the  forest  reserves  of  the  United  States,  are  hereby 
granted  to  citizens  and  corporations  of  the  United  States  for 
municipal  or  mining  purposes,  and  for  the  purposes  of  the 
milling  and  reduction  of  ores,  during  the  period  of  their 
beneficial  use,  under  such  rules  and  regulations  as  may  be 
prescribed  by  the  Secretary  of  the  Interior,  and  subject  to  the 


71 

laws  of  the  State  or  Territory  in  which  said  reserves  are 
respectively  situated.'' 

That  the  grant  of  rights  of  way  made  by  this  section  may 
be  accepted  and  availed  of,  not  only  by  municipal  corporations 
and  miners,  but  also  by  any  citizen  or  any  corporation  of  the 
United  States  who  chooses  to  engage  in  the  business  of  appro- 
priating, storing,  conveying,  distributing  and  selling  water 
' '  for  municipal  or  mining  purposes ' '  seems  too  plain  to  require 
argument  or  citation  of  authorities.  But,  as  plaintiff  appears 
to  have  contended  in  the  District  Court  that  this  Act  is  not 
to  be  so  construed,  I  refer  this  Court  to  the  case  of 

Gutierres  v.  Albuquerque  Land  and  Irrigation  Co.,  188 
U.  S.  545,  555-6, 

wherein  a  similar  contention  concerning  the  aforesaid  Act  of 
March  3,  1877,  was  rejected  by  this  Court  in  the  following 
paragraph  which  I  quote  from  its  opinion : 

'*We  perceive  no  merit  in  the  contention  that  the 
proviso  in  the  desert  land  act  of  March  3,  1877,  declar- 
ing that  surplus  water  on  the  public  domain  shall 
remain  and  be  held  free  for  the  appropriation  and  use 
of  the  public  for  irrigation,  mining,  and  manufac- 
turing purposes,  subject  to  existing  rights,  is  an 
expression  of  the  will  of  Congress  that  all  public 
waters  within  its  control  or  the  control  of  a  legislative 
body  of  its  creation,  must  be  directly  appropriated  by 
the  owners  of  land  upon  which  a  beneficial  use  of 
water  is  to  be  made,  and  that  in  consequence  a  terri- 
torial legislature  cannot  lawfully  empower  a  corpora- 
tion, such  as  the  appellee,  to  become  an  intermediary 
for  furnishing  water  to  irrigate  the  lands  of  third 
parties.  As  all  owners  of  land  within  the  service 
capacity  of  appellee's  canal  will  possess  the  right  to 
use  the  water  which  may  be  diverted  into  such  canal, 
the   use   is   clearly   public    (Fallbrook   Irrig.    Dist.   v. 


72 


Bradley,  164  U.  S.  163,  41  L.  ed.  390,  17  Sup.  Ct.  Rep. 
56),  and  appellee  is  therefore  a  public  agency,  whose 
right  to  divert  water  and  whose  continued  existence 
is  dependent  upon  the  application  by  it  within  a  rea- 
sonable time  of  such  diverted  water  to  a  beneficial  use. 
Irrigation    corporations    generally    are    recognized    in 
the  legislation  of  Congress,  and  the  rights  conferred 
are  not  limited  to  such  corporations  as  are  mere  com- 
binations of  owners  of  irrigable  land." 
If  the  Act  of  February  15,  1901,  repealed  by  implication 
the  aforesaid  earlier  Acts  of  Congress,  authorized  the  Sec- 
retary of  the  Interior  to  grant  permits  or  licenses,  revocable 
in  his  discretion,  for  the  occupancy  and  use  of  rights  of  way 
for  reservoirs  and  canals  to  be  used  for  the  purposes  therein 
specified,  and  is  not  unconstitutional,  then  plainly  this  Act  of 
February  1,  1905,  which  makes  a  direct  grant  of  rights  of  way 
for  reservoirs,  canals  and  other  aqueducts  for  the  purposes 
therein  specified  ''during  the  period  of  their  beneficial  use" 
supersedes  and  by  implication  repeals  said  Act  of  February 
15,  1901,  so  far  as  the  latter  act  originally  applied  to  rights 
of  way  for  reservoirs  and  aqueducts  "within  and  across  the 
forest  reserves  of  the  United  States    *    *    *    for  municipal  or 
mining  purposes,  and  for  the  purposes  of  milling  and  reduc- 
tion of  ores",  because  the  provisions  of  section  4  of  this  Act 
of  February  1,  1905,  are  utterly  and  completely  inconsistent, 
to  the  extent  which  I  have  just  indicated,  with  the  provisions 
of  said  Act  of  February  15,  1901. 

To  determine  the  extent  to  which  section  4  of  said  Act  of 
February  1,  1905,  operates  as  a  repeal  by  implication  of  said 
Act  of  February  15,  1901,  it  is  necessary  to  consider  the 
denotation  of  the  term  ^'municipal''  used  in  describing  the 
purposes  for  which  rights  of  way  are  granted  by  said  section 
4.  The  denotation  of  the  term  "municipal  is  not  limited  to 
things  pertaining  to  an  incorporated  city  or  town,  but  includes 
all  matters  and  things  ''pertaining  to  the  internal  affairs  of 
a  state,  kingdom  or  nation  and  its  citizens."  See  sub.  nom, 
municipal — 


73 

Century  Dictionary; 
Bouvier's  Law  Dictionary; 
Cyc,  volume  28,  page  53;  and 
Words  and  Phrases. 

Nowhere  have  I  found  a  better  discussion  of  the  meaning 
of  the  word  ^^ municipal"  than  in  the  following  quotation 
from  the  opinion  of  the  Supreme  Court  of  Oregon  in 

Cook  V.  Port  of  Portland,  20  Or.  580,  583,  27  Pac. 
263,  13  L.  R.  A.  533 : 

'  *  The  whole  question,  therefore,  turns  upon  the  mean- 
ing of  the  phrase  'municipal  purposes,'  as  used  in  the 
Constitution.  The  word  'municipal'  is  defined  by  the 
lexicographers  as  belonging  to  a  city,  town,  or  place; 
having  the  right  of  local  government;  belonging  to  or 
affecting  a  particular  State  or  separate  community; 
local;  particular;  independent.  It  is  usually  applied 
to  what  belongs  to  a  city,  but  has  a  more  extensive 
meaning,  and  is  in  legal  effect  the  same  as  public  or 
governmental,  as  distinguished  from  private.  Burrill, 
Diet,  title  Municipal.  Thus  we  call  municipal  law  not 
the  law  of  a  city  only,  but  the  law  of  the  State.  1  Bl. 
Com.  44.  Municipal  is  used  in  contradistinction  to 
international.  Thus  we  say  an  offense  against  the  law 
of  nations  is  an  international  offense,  but  one  com- 
mitted against  a  particular  State  or  separate  commu- 
nity is  a  municipal  offense.  And  so  are  municipal 
affairs  public  affairs,  and  municipal  purposes  are  pub- 
lic or  governmental  purposes,  as  contradistinguished 
from  private  purposes.  A  corporation,  therefore,  cre- 
ated for  municipal  purposes  is  a  corporation  created 
for  public  or  governmental  purposes  with  political 
powers  to  be  exercised  for  the  public  good  in  the  admin- 
istration of  civil  government,  whose  members  are  citi- 
zens, not  stockholders;  an  instrument  of  the  govern- 
ment, with  certain  delegated  powers,  subject  to  the 
control  of  the  Legislature,  and  its  members,  officers,  or 


74 


agents  of  the  government  for  the  administration  or 
discharge  of  public  duties.  A  city,  or  purely 
municipal  corporation,  is  perhaps  the  highest  type  of  a 
corporation  created  for  municipal  purposes,  because  it 
is  a  miniature  government,  having  legislative,  execu- 
tive, and  judicial  powers ;  but  there  is  another  class  of 
corporations,  such  as  counties,  school  districts,  road 
districts,  etc.,  which,  though  varying  in  application  and 
peculiar  features  are  but  so  many  agencies  or  instru- 
mentalities of  the  State  to  promote  the  convenience  of 
the  public  at  large  and  are,  in  the  broadest  use  of  the 
term,  for  municipal  purposes.  It  would  be  a  narrow 
and  unwarranted  construction  of  the  language  to  say 
that  'municipal  purposes'  means  only  city,  town,  or 
village  purposes.  The  Constitution  of  this  State  evi- 
dently contemplates  the  creation  of  counties  under  the 
direct  supervision  of  and  by  special  Act  of  the  Legis- 
lature, yet  no  direct  power  is  given  to  create  them, 
and  the  section  under  consideration  contains  a  direct 
prohibition  against  doing  so,  unless  the  word  'munici- 
pal' covers  this  class  of  corporations.  We  thus  per- 
ceive that  the  word  'municipal'  not  only  applies  to 
cities,  towns,  and  villages,  but  has  a  broader  and  more 
general  signification  relating  to  the  State  or  nation. 
And  therefore  the  words  'municipal  corporations',  as 
applied  to  incorporated  cities  or  towns,  and  'municipal 
purposes',  are  not  synonymous.  The  latter  embrace, 
by  the  common  speech  of  men  before  and  since  the  days 
of  Blacl^tone,  state  or  national  purposes.  And  there- 
fore, while  cities,  towns,  and  villages  are  for  municipal 
purposes,  there  are  also  other  corporations  for  munici- 
pal purposes  that  are  not  of  that  class.  It  was  in  the 
broader  and  more  general  sense  of  the  term  that  the 
words  'municipal  purposes'  were  used  in  the  Consti- 
tution of  this  State.  This  is  evident  from  section  9 
of  the  same  article  of  the  Constitution,  wherein  it  is 
provided  that  no  county,  city,  town,  or  other  municipal 


75 


corporation,  by  a  vote  of  its  citizens  or  otherwise,  shall 
become  a  stockholder  in  any  joint  stock  company, 
corporation,  etc.  Here  is  a  direct  interpretation  from 
the  Constitution  itself.  A  municipal  corporation  is 
not  necessarily  a  county,  city,  or  town.  Were  it  so,  the 
added  words,  'or  other  municipal  corporation',  would 
be  without  meaning.  Clearly  a  corporation  for  mu- 
nicipal purposes  is  one  composed  of  citizens,  as  distin- 
guished from  stockholders;  a  public,  as  distinguished 
from  a  private,  corporation." 

In  view  of  the  facts  that  the  use  of  water  is  as  essential  to 
the  inhabitants  of  the  country  as  to  the  inhabitants  of  incor- 
porated cities  and  towns  and  that,  in  many  parts  of  the  states 
wherein  are  situated  public  lands  and  forest  reservations  of 
the  United  States,  the  chief  sources  of  water  supply  for  all 
public  purposes,  whether  in  city  or  in  country,  are  the  non- 
navigable  lakes  and  streams  on  such  public  lands  and  reserva- 
tions, it  seems  reasonable  to  suppose  that  Congress  (assuming 
that  body  to  be  aware  of  the  narrow  and  unconstitutional 
construction  placed  by  the  Department  of  the  Interior  and 
Department  of  Agriculture  on  said  Act  of  February  15,  1901) 
intended,  in  enacting  said  Act  of  February  1,  1905,  to  remedy 
the  intolerable  conditions  then  existing,  and,  to  that  end, 
granted,  by  section  4  of  the  last  mentioned  Act,  all  rights  of 
way  for  reservoirs  and  aqueducts  required  for  all  public 
purposes,  whether  served  directly  by  the  states  or  their 
municipal  corporations  or  political  subdivisions,  or  indirectly 
through  the  agency  of  natural  persons  or  private  corporations. 

Under  this  interpretation  of  the  term  ''municipal",  as 
employed  in  section  4  of  said  Act  of  February  1,  1905,  the 
grant  made  by  said  section  is  broad  enough  to  include,  and  I 
submit  that  it  should  be  construed  as  including,  a  grant  of 
rights  of  way  for  reservoirs  and  canals  for  impounding, 
storing,  and  conveying  water  to  be  used  for  the  generation  of 
electric  power  by  any  corporation  which  distributes  and  sells 


76 

such  electric  power  to  a  state  or  any  of  its  municipalities  or 
subdivisions  and  the  inhabitants  thereof  in  the  same  manner 
as  other  public  uses  are  served.  Consequently  the  decree  of 
the  District  Court  in  this  case  should  be  reversed  by  reason 
of  the  provisions  of  this  Act  alone,  whatever  may  be  decided 
concerning  the  construction  or  constitutionality  of  the  Act  of 
February  15,  1901. 

KespectfuUy  submitted, 

Wm.  B.  Bosley, 

Amicus  Cunae. 
San  Francisco,  California,  May  29,  1916. 


APPENDIX 


CONTAINING 


Extracts  from  the  Statutes  of  the  United  States 


RELATING  TO  WATER  RIGHTS  AND 
RIGHTS  OF  WAY  FOR  RESERVOIRS 
AND  CANALS  UPON  THE  PUBLIC 
LANDS  AND  RESERVATIONS  OF  THE 
UNITED  STATES 


EXTRACTS   FROM   THE   STATUTES   OF   THE   UNITED   STATES 

RELATING  TO  WATER  RIGHTS  AND  RIGHTS  OF  WAY  FOR 

RESERVOIRS  AND  CANALS  UPON  THE  PUBLIC  LANDS 

AND    RESERVATIONS    OF    THE    UNITED    STATES. 


Chap.  CCLXII.  An  Act  Granting  the  Right  of  Way  to 
Ditch  and  Canal  Owners  Over  the  Public  Lands,  and 
FOR  Other  Purposes. 

Approved  July  26,  1866. 

14  U.  S.  Stats,  at  L.,  251. 


Sec.  9.  And  he  it  further  enacted,  That  whenever,  by  priority 
of  possession,  rights  to  the  use  of  water  for  mining,  agri- 
cultural, manufacturing,  or  other  purposes,  have  vested  and 
accrued,  and  the  same  are  recognized  and  acknowledged  by 
the  local  customs,  laws,  and  the  decisions  of  courts,  the  pos- 
sessors and  owners  of  such  vested  rights  shall  be  maintained 
and  protected  in  the  same;  and  the  right  of  way  for  the 
construction  of  ditches  and  canals  for  the  purposes  afore- 
said is  hereby  acknowledged  and  confirmed:  Provided,  how- 
ever. That  whenever,  after  the  passage  of  this  act,  any  person 
or  persons  shall,  in  the  construction  of  any  ditch  or  canal, 
injure  or  damage  the  possession  of  any  settler  on  the  public 
domain,  the  party  committing  such  injury  or  damage  shall 
be  liable  to  the  party  injured  for  such  injury  or  damage. 


Chap.  CCXXXV.  An  Act  to  Amend  ''An  Act  Granting 
THE  Right  of  Way  to  Ditch  and  Canal  Owners  Over 
the  Public  Lands  and  for  Other  Purposes/^ 

Approved  July  9,  1870. 
16  TJ.  8.  Stats,  at  L.,  217. 


Sec.  17.  And  he  it  further  enacted,  That  none  of  the  rights 
conferred  by  Sections  five,  eight,  and  nine  of  the  act  to  which 
this  act  is  amendatory  shall  be  abrogated  by  this  act,  and  the 
same  are  hereby  extended  to  all  public  lands  affected  by  this 
act;  and  all  patents  granted,  or  pre-emption  or  homesteads 
allowed,  shall  be  subject  to  any  vested  and  accrued  water 
rights,  or  rights  to  ditches  and  reservoirs  used  in,  connection 
with  such  water  rights,  as  may  have  been  acquired  under  or 
recognized  by  the  ninth  section  of  the  act  of  which  this  act  is 
amendatory.  But  nothing  in  this  act  shall  be  construed  to 
repeal,  impair,  or  in  any  way  affect  the  provisions  of  the 
"Act  granting  to  A.  Sutro  the  right  of  way  and  other  priv- 
ileges to  aid  in  the  construction  of  a  draining  and  exploring 
tunnel  to  the  Comstock  lode,  in  the  State  of  Nevada,"  ap- 
proved July  twenty-fifth,  eighteen  hundred  and  sixty-six. 


Revised  Statutes  of  the  United  States. 

Sec.  2339.  Whenever,  by  priority  of  possession,  rights  to 
the  use  of  water  for  mining,  agricultural,  manufacturing,  or 
other  purposes,  have  vested  and  accrued,  and  the  same  are 
recognized  and  aclmowledged  by  the  local  customs,  laws,  and 
the  decisions  of  courts,  the  possessors  and  owners  of  such 
vested  rights  shall  be  maintained  and  protected  in  the  same; 
and  the  right  of  way  for  the  construction  of  ditches  and  canals 
for  the  purposes  herein  specified  is  acknowledged  and  con- 
firmed; but  whenever  any  person,  in  the  construction  of  any 
ditch  or  canal,  injures  or  damages  the  possession  of  any  set- 
tler on  the  public  domain,  the  party  committing  such  injury 
or  damage  shall  be  liable  to  the  party  injured  for  such  injury 
or  damage. 

Sec.  2340.  All  patents  granted,  or  pre-emption  or  home- 
steads allowed,  shall  be  subject  to  any  vested  and  accrued 
water-rights,  or  rights  to  ditches  and  reservoirs  used  in  con- 
nection with  such  water-rights,  as  may  have  been  acquired 
under  or  recognized  by  the  preceding  section. 


6 

Chap.  107.     An  Act  to  Provide  for  the  Sale  of  Desert 
Lands  in  Certain  States  and  Territories. 

Approved  March  3,  1877. 

19  U.  8.  Stats,  at  L.,  377. 

Be  it  enacted  hy  the  Senate  and  House  of  Bepresentatives 
of  the  United  States  of  America  in  Congress  assemhled,  That 
it  shall  be  lawful  for  any  citizen  of  the  United  States,  or  any 
person  of  requisite  age  ''who  may  be  entitled  to  become  a 
citizen,  and  who  has  filed  his  declaration  to  become  such''  and 
upon  payment  of  twenty-five  cents  per  acre — to  file  a  declara- 
tion under  oath  with  the  register  and  the  receiver  of  the  land 
district  in  which  any  desert  land  is  situated,  that  he  intends 
to  reclaim  a  tract  of  desert  land  not  exceeding  one  section, 
by  conducting  water  upon  the  same,  within  the  period  of 
three  years  thereafter,  provided  however  that  the  right  to  the 
use  of  water  by  the  person  so  conducting  the  same,  on  or  to 
any  tract  of  desert  land  of  six  hundred  and  forty  acres  shall 
depend  upon  bona  fide  prior  appropriation:  and  such  right 
shall  not  exceed  the  amount  of  water  actually  appropriated, 
and  necessarily  used  for  the  purpose  of  irrigation  and  reclama- 
tion :  and  all  surplus  water  over  and  above  such  actual 
appropriation  and  use,  together  with  the  water  of  all  lakes, 
rivers  and  other  sources  of  water  supply  upon  the  public 
lands  and  not  navigable,  shall  remain  and  be  held  free  for 
the  appropriation  and  use  of  the  public  for  irrigation,  mining 
and  manufacturing  purposes  subject  to  existing  rights.  Said 
declaration  shall  describe  particularly  said  section  of  land 
if  surveyed,  and,  if  unsurveyed,  shall  describe  the  same  as 
nearly  as  possible  without  a  survey.  At  any  time  within  the 
period  of  three  years  after  filing  said  declaration,  upon  making 
satisfactory  proof  to  the  register  and  receiver  of  the  reclama- 
tion of  said  tract  of  land  in  the  manner  aforesaid,  and  upon 
the  payment  to  the  receiver  of  the  additional  sum  of  one 
dollar  per  acre  for  a  tract  of  land  not  exceeding  six  hundred 
and  forty  acres  to  any  one  person,  a  patent  for  the  same  shall 


be  issued  to  him.  Provided,  That  no  person  shall  be  permitted 
to  enter  more  than  one  tract  of  land  and  not  to  exceed  six 
hundred  and  forty  acres  which  shall  be  in  compact  form. 

Sec.  2.  That  all  lands  exclusive  of  timber  lands  and  mineral 
lands  which  will  not,  without  irrigation,  produce  some  agri- 
cultural crop,  shall  be  deemed  desert  lands,  within  the  mean- 
ing of  this  act,  which  fact  shall  be  ascertained  by  proof  of  two 
or  more  credible  witnesses  under  oath,  whose  affidavits  shall 
be  filed  in  the  land  office  in  which  said  tract  of  land  may  be 
situated — 

Sec.  3.  That  this  act  shall  only  apply  to  and  take  effect 
in  the  States  of  California,  Oregon  and  Nevada,  and  the  Ter- 
ritories of  Washington,  Idaho,  Montana,  Utah,  Wyoming, 
Arizona,  New  Mexico  and  Dakota,  and  the  determination  of 
what  may  be  considered  desert  land  shall  be  subject  to  the 
decision  and  regulation  of  the  Commissioner  of  the  General 
Land  Office. 


8 

Chap.  561.    An  Act  to  Repeal  Timber-Culture  Laws,  and 
FOR  Other  Purposes. 

Approved  March  3,  1891. 

26  U.  S.  Stats.,  at  L.,  1095,  1101-3. 
*      «      *      »      • 

Sec.  18.  That  the  right  of  way  through  the  public  lands 
and  reservations  of  the  United  States  is  hereby  granted  to  any 
canal  or  ditch  company  formed  for  the  purpose  of  irrigation 
and  duly  organized  under  the  laws  of  any  State  or  Territory, 
which  shall  have  filed,  or  may  hereafter  file,  with  the  Secretary 
of  the  Interior  a  copy  of  its  articles  of  incorporation,  and 
due  proofs  of  its  organization  under  the  same,  to  the  extent 
of  the  ground  occupied  by  the  water  of  the  reservoir  and  of 
the  canal  and  its  laterals,  and  fifty  feet  on  each  side  of  the 
marginal  limits  thereof;  also  the  right  to  take,  from  the 
public  lands  adjacent  to  the  line  of  the  canal  or  ditch,  material, 
earth,  and  stone  necessary  for  the  construction  of  such  canal 
or  ditch:  Provided,  That  no  such  right  of  way  shall  be  so 
located  as  to  interfere  with  the  proper  occupation  by  the 
Government  of  any  such  reservation,  and  all  maps  of  location 
shall  be  subject  to  the  approval  of  the  Department  of  the 
Government  having  jurisdiction  of  such  reservation,  and  the 
privilege  herein  granted  shall  not  be  construed  to  interfere 
with  the  control  of  water  for  irrigation  and  other  purposes 
under  authority  of  the  respective  States  or  Territories. 

Sec.  19.  That  any  canal  or  ditch  company  desiring  to 
secure  the  benefits  of  this  act  shall,  within  twelve  months 
after  the  location  of  ten  miles  of  its  canal,  if  the  same  be  upon 
surveyed  lands,  and  if  upon  unsurveyed  lands,  within  twelve 
months  after  the  survey  thereof  by  the  United  States,  file  with 
the  register  of  the  land  office  for  the  district  where  such  land 
is  located  a  map  of  its  canal  or  ditch  and  reservoir ;  and  upon 
the  approval  thereof  by  the  Secretary  of  the  Interior  the 
same  shall  be  noted  upon  the  plats  in  said  office,  and  thereafter 
all  such  lands  over  which  such  rights  of  way  shall  pass  shall 
be  disposed  of  subject  to  such  right  of  way.  Whenever  any 
person  or  corporation,  in  the  construction  of  any  canal,  ditch, 


9 

or  reservoir,  injures  or  damages  the  possession  of  any  settler 
on  the  public  domain,  the  party  committing  such  injury  or 
damage  shall  be  liable  to  the  party  injured  for  such  injury 
or  damage. 

Sec.  20.  That  the  provisions  of  this  act  shall  apply  to  all 
canals,  ditches,  or  reservoirs,  heretofore  or  hereafter  con- 
structed, whether  constructed  by  corporations,  individuals,  or 
association  of  individuals,  on  the  filing  of  the  certificates  and 
maps  herein  provided  for.  If  such  ditch,  canal,  or  reservoir, 
has  been  or  shall  be  constructed  by  an  individual  or  association 
of  individuals,  it  shall  be  sufiicient  for  such  individual  or 
association  of  individuals  to  file  with  the  Secretary  of  the 
Interior,  and  with  the  register  of  the  land  office  where  said 
land  is  located,  a  map  of  the  line  of  such  canal,  ditch,  or 
reservoir,  as  in  case  of  a  corporation,  with  the  name  of  the 
individual  owner  or  owners  thereof,  together  with  the  articles 
of  association,  if  any  there  be.  Plats  heretofore  filed  shall 
have  the  benefits  of  this  act  from  the  date  of  their  filing,  as 
though  filed  under  it:  Provided,  That  if  any  section  of  said 
canal,  or  ditch,  shall  not  be  completed  within  five  years  after 
the  location  of  said  section,  the  rights  herein  granted  shall 
be  forfeited  as  to  any  uncompleted  section  of  said  canal,  ditch, 
or  reservoir,  to  the  extent  that  the  same  is  not  completed  at 
the  date  of  the  forfeiture. 

Sec.  21.  That  nothing  in  this  act  shall  authorize  such 
canal  or  ditch  company  to  occupy  such  right  of  way  except 
for  the  purpose  of  said  canal  or  ditch,  and  then  only  so  far 
as  may  be  necessary  for  the  construction,  maintenance,  and 
care  of  said  canal  or  ditch. 


Sec.  24.  That  the  President  of  the  United  States  may, 
from  time  to  time,  set  apart  and  reserve,  in  any  State  or 
Territory  having  public  land  bearing  forests,  in  any  part  of 
the  public  lands  wholly  or  in  part  covered  with  timber  or 
undergrowth,  whether  of  commercial  value  or  not,  as  public 
reservations,  and  the  President  shall,  by  public  proclamation, 
declare  the  establishment  of  such  reservations  and  the  limits 
thereof. 


10 

Chap.  37.  An  Act  to  Permit  the  Use  of  the  Right  op 
Way  Through  the  Public  Lands  for  Tramroads, 
Canals,  and  Reservoirs,  and  for  Other  Purposes. 

Approved  January  21,  1895. 

28  U.  S.  Stats,  at  L.,  635. 

Be  it  enacted  ty  the  Senate  and  House  of  Representatives 
of  the  United  States  of  America  in  Congress  Assembled,  That 
the  Secretary  of  the  Interior  be,  and  hereby  is,  authorized 
and  empowered,  under  general  regulations  to  be  fixed  by 
him,  to  permit  the  use  of  the  right  of  way  through  the  public 
lands  of  the  United  States,  not  within  the  limits  of  any  park, 
forest,  military  or  Indian  reservation,  for  tramroads,  canals 
or  reservoirs  to  the  extent  of  the  ground  occupied  by  the  water 
of  the  canals  and  reservoirs  and  fifty  feet  on  each  side  of  the 
marginal  limits  thereof ;  or  fifty  feet  on  each  side  of  the  center 
line  of  the  tramroad,  by  any  citizen  or  any  association  of 
citizens  of  the  United  States  engaged  in  the  business  of  mining 
or  quarrying  or  of  cutting  timber  and  manufacturing  lumber. 


11 

Chap.  179.  An  Act  to  Amend  the  Act  Approved  March 
Third,  Eighteen  Hundred  and  Ninety-One,  Granting 
the  Right  of  Way  Upon  the  Public  Lands  for  Reser- 
voir AND  Canal  Purposes. 

Approved  May  14,  1896. 
29  U.  S.  stats,  at  L.,  120. 

Be  it  enacted  hy  the  Senate  and  House  of  Representatives 
of  the  United  States  of  America  in  Congress  Assembled,  That 
the  Act  entitled  ''An.Act  to  permit  the  use  of  the  right  of 
way  through  the  public  lands  for  tramroads,  canals,  and 
reservoirs,  and  for  other  purposes, ' '  approved  January  twenty- 
first,  eighteen  hundred  and  ninety-five,  be,  and  the  same  is 
hereby,  amended  by  adding  thereto  the  following : 

' '  Sec.  2.  That  the  Secretary  of  the  Interior  be,  and  hereby 
is,  authorized  and  empowered,  under  general  regulations  to 
be  fixed  by  him,  to  permit  the  use  of  right  of  way  to  the  extent 
of  twenty-five  feet,  together  with  the  use  of  necessary  ground, 
not  exceeding  forty  acres,  upon  the  public  lands  and  forest 
reservations  of  the  United  States,  by  any  citizen  or  association 
of  citizens  of  the  United  States,  for  the  purposes  of  generating, 
manufacturing,  or  distributing  electric  power. '* 


12 

Chap.  335.    An  Act  to  Provide  for  the  Use  and  Occupation 
OP  Reservoir  Sites  Reserved. 

Approved  February  26,  1897. 

29  U.  S.  Stats,  at  L.,  599, 

Be  it  enacted  hy  the  Senate  and  House  of  Representatives 
of  the  United  States  of  America  in  Congress  AssemUed,  That 
all  reservoir  sites  reserved  or  to  be  reserved  shall  be  open  to 
use  and  occupation  under  the  right-of-way  Act  of  March 
third,  eighteen  hundred  and  ninety-one.  And  any  State  is 
hereby  authorized  to  improve  and  occupy  such  reservoir  sites 
to  the  same  extent  as  an  individual  or  private  corporation, 
under  such  rules  and  regulations  as  the  Secretary  of  the 
Interior  may  prescribe :  Provided,  That  the  charges  for  water 
coming  in  whole  or  part  from  reservoir  sites  used  or  occupied 
under  the  provisions  of  this  Act  shall  always  be  subject  to  the 
control  and  regulation  of  the  respective  States  and  Territories 
in  which  such  reservoirs  are  in  whole  or  part  situate. 


13 

Chap.  2.    An  Act  Making  Appropriations  for  Sundry  Civil 
Expenses  of  the  Government  for  the  Fiscal  Year 
Ending  June  Thirtieth,  Eighteen  Hundred  and  Nine- 
ty-Eight, AND  FOR  Other  Purposes. 
Approved  June  4,  1897. 

30  U.  S.  Stats,  at  L.,  11,  34-36. 
«      *      «      «      « 

All  public  lands  heretofore  designated  and  reserved  by  the 
President  of  the  United  States  under  the  provisions  of  the 
Act  approved  March  third,  eighteen  hundred  and  ninety-one, 
the  orders  for  which  shall  be  and  remain  in  full  force  and 
effect,  unsuspended  and  unrevoked,  and  all  public  lands  that 
may  hereafter  be  set  aside  and  reserved  as  public  forest 
reserves  under  said  Act,  shall  be  as  far  as  practicable  controlled 
and  administered  in  accordance  with  the  following  provisions : 

No  public  forest  reservation  shall  be  established,  except  to 
improve  and  protect  the  forest  within  the  reservation,  or  for 
the  purpose  of  securing  favorable  conditions  of  water  flows, 
and  to  furnish  a  continuous  supply  of  timber  for  the  use  and 
necessities  of  citizens  of  the  United  States;  but  it  is  not  the 
purpose  or  intent  of  these  provisions,  or  of  the  Act  providing 
for  such  reservations,  to  authorize  the  inclusion  therein  of 
lands  more  valuable  for  the  mineral  therein,  or  for  agricultural 
purposes,  than  for  forest  purposes. 

The  Secretary  of  the  Interior  shall  make  provisions  for  the 
protection  against  destruction  by  fire  and  depredations  upon 
the  public  forests  and  forest  reservations  which  may  have 
been  set  aside  or  which  may  be  hereafter  set  aside  under  the 
said  Act  of  March  third,  eighteen  hundred  and  ninety-one, 
and  which  may  be  continued;  and  he  may  make  such  rules 
and  regulations  and  establish  such  service  as  will  insure  the 
objects  of  such  reservations,  namely,  to  regulate  their  occu- 
pancy and  use  and  to  preserve  the  forests  thereon  from 
destruction;  and  any  violation  of  the  provisions  of  this  Act 
or  such  rules  and  regulations  shall  be  punished  as  is  provided 
for  in  the  Act  of  June  fourth,  eighteen  hundred  and  eighty- 
eight,  amending  section  fifty-three  hundred  and  eighty-eight 
of  the  Revised  Statutes  of  the  United  States. 


14 

For  the  purpose  of  preserving  the  living  and  growing  timber 
and  promoting  the  younger  growth  on  forest  reservations,  the 
Secretary  of  the  Interior,  under  such  rules  and  regulations  as 
he  shall  prescribe,  may  cause  to  be  designated  and  appraised 
so  much  of  the  dead,  matured,  or  large  growth  of  trees  found 
upon  such  forest  reservations  as  may  be  compatible  with  the 
utilization  of  the  forests  thereon,  and  may  sell  the  same  for 
not  less  than  the  appraised  value  in  such  quantities  to  each 
purchaser  as  he  shall  prescribe,  to  be  used  in  the  State  or 
Territory  in  which  such  timber  reservation  may  be  situated, 
respectively,  but  not  for  export  therefrom.  Before  such  sale 
shall  take  place,  notice  thereof  shall  be  given  by  the  Commis- 
sioner of  the  General  Land  Office,  for  not  less  than  sixty  days, 
by  publication  in  a  newspaper  of  general  circulation,  published 
in  the  county  in  which  the  timber  is  situated,  if  any  is  therein 
published,  and  if  not,  then  in  a  newspaper  of  general  circu- 
lation published  nearest  to  the  reservation,  and  also  in  a 
newspaper  of  general  circulation  published  at  the  capital  of 
the  State  or  Territory  where  such  reservation  exists ;  payments 
for  such  timber  to  be  made  to  the  receiver  of  the  local  land 
office  of  the  district  wherein  said  timber  may  be  sold,  under 
such  rules  and  regulations  as  the  Secretary  of  the  Interior 
may  prescribe;  and  the  moneys  arising  therefrom  shall  be 
accounted  for  by  the  receiver  of  such  land  office  to  the  Com- 
missioner of  the  General  Land  Office,  in  a  separate  account, 
and  shall  be  covered  into  the  Treasury.  Such  timber,  before 
being  sold,  shall  be  marked  and  designated,  and  shall  be  cut 
and  removed  under  the  supervision  of  some  person  appointed 
for  that  purpose  by  the  Secretary  of  the  Interior,  not  interested 
in  the  purchase  or  removal  of  such  timber  nor  in  the  employ- 
ment of  the  purchaser  thereof.  Such  supervisor  shall  make 
report  in  writing  to  the  Commissioner  of  the  General  Land 
Office  and  to  the  receiver  in  the  land  office  in  which  such 
reservation  shall  be  located  of  his  doings  in  the  premises. 

The  Secretary  of  the  Interior  may  permit,  under  regulations 
to  be  prescribed  by  him,  the  use  of  timber  and  stone  found 
upon  such  reservations,  free  of  charge,  by  bona  fide  settlers, 


15 

miners,  residents,  and  prospectors  for  minerals,  for  firewood, 
fencing,  buildings,  mining,  prospecting,  and  other  domestic 
purposes,  as  may  be  needed  by  such  persons  for  such  purposes ; 
such  timber  to  be  used  within  the  State  or  Territory, 
respectively,  where  such  reservations  may  be  located. 

Nothing  herein  shall  be  construed  as  prohibiting  the  egress 
or  ingress  of  actual  settlers  residing  within  the  boundaries  of 
such  reservations,  or  from  crossing  the  same  to  and  from  their 
property  or  homes ;  and  such  wagon  roads  and  other  improve- 
ments may  be  constructed  thereon  as  may  be  necessary  to  reach 
their  homes  and  to  utilize  their  property  under  such  rules  and 
regulations  as  may  be  prescribed  by  the  Secretary  of  the 
Interior.  Nor  shall  anything  herein  prohibit  any  person  from 
entering  upon  such  forest  reservations  for  all  proper  and 
lawful  purposes,  including  that  of  prospecting,  locating,  and 
developing  the  mineral  resources  thereof:  Provided,  That 
such  persons  comply  with  the  rules  and  regulations  covering 
such  forest  reservations. 

That  in  cases  in  which  a  tract  covered  by  an  unperfected 
bona  fide  claim  or  by  a  patent  is  included  within  the  limits 
of  a  public  forest  reservation,  the  settler  or  owner  thereof 
may,  if  he  desires  to  do  so,  relinquish  the  tract  to  the  Govern- 
ment, and  may  select  in  lieu  thereof  a  tract  of  vacant  land 
open  to  settlement  not  exceeding  in  area  the  tract  covered  by 
his  claim  or  patent ;  and  no  charge  shall  be  made  in  such  cases 
for  making  the  entry  of  record  or  issuing  the  patent  to  cover 
the  tract  selected :  Provided  further,  That  in  cases  of  unper- 
fected claims  the  requirements  of  the  laws  respecting  settle- 
ment, residence,  improvements,  and  so  forth,  are  complied 
with  on  the  new  claims,  credit  being  allowed  for  the  time  spent 
on  the  relinquished  claims. 

The  settlers  residing  within  the  exterior  boundaries  of  such 
forest  reservations,  or  in  the  vicinity  thereof,  may  maintain 
schools  and  churches  within  such  reservation,  and  for  that 
purpose  may  occupy  any  part  of  the  said  forest  reservation, 
not  exceeding  two  acres  for  each  schoolhouse  and  one  acre  for 
a  church. 


16 

The  jurisdiction,  both  civil  and  criminal,  over  persons 
within  such  reservations  shall  not  be  affected  or  changed  by- 
reason  of  the  existence  of  such  reservations,  except  so  far  as 
the  punishment  of  offenses  against  the  United  States  therein 
is  concerned;  the  intent  and  meaning  of  this  provision  being 
that  the  State  wherein  any  such  reservation  is  situated  shall 
not,  by  reason  of  the  establishment  thereof,  lose  its  jurisdiction, 
nor  the  inhabitants  thereof  their  rights  and  privileges  as 
citizens,  or  be  absolved  from  their  duties  as  citizens  of  the 
State. 

All  waters  on  such  reservations  may  be  used  for  domestic, 
mining,  milling,  or  irrigation  purposes,  under  the  laws  of  the 
State  wherein  such  forest  reservations  are  situated,  or  under 
the  laws  of  the  United  States  and  the  rules  and  regulations 
established  thereunder. 

Upon  the  recommendation  of  the  Secretary  of  the  Interior, 
with  the  approval  of  the  President,  after  sixty  days'  notice 
thereof,  published  in  two  papers  of  general  circulation  in  the 
State  or  Territory  wherein  any  forest  reservation  is  situated, 
and  near  the  said  reservation,  any  public  lands  embraced 
within  the  limits  of  any  forest  reservation  which,  after  due 
examination  by  personal  inspection  of  a  competent  person 
appointed  for  that  purpose  by  the  Secretary  of  the  Interior, 
shall  be  found  better  adapted  for  mining  or  for  agricultural 
purposes  than  for  forest  usage,  may  be  restored  to  the  public 
domain.  And  any  mineral  lands  in  any  forest  reservation 
which  have  been  or  which  may  be  shown  to  be  such,  and 
subject  to  entry  under  the  existing  mining  laws  of  the  United 
States  and  the  rules  and  regulations  applying  thereo,  shall 
continue  to  be  subject  to  such  location  and  entry,  notwith- 
standing any  provisions  herein  contained. 

The  President  is  hereby  authorized  at  any  time  to  modify 
any  Executive  order  that  has  been  or  may  hereafter  be  made 
establishing  any  forest  reserve,  and  by  such  modification  may 
reduce  the  area  or  change  the  boundary  lines  of  such  reserve, 
or  may  vacate  altogether  any  order  creating  such  reserve. 


17 

Chap.  292.  An  Act  to  Amend  an  Act  to  Permit  the  Use 
OP  the  Eight  op  Way  Through  Public  Lands  for 
Tramroads,  Canals,  and  Reservoirs,  and  for  Other 
Purposes. 

Approved  May  11,  1898. 
30  U.  S.  Stats,  at  L.,  404. 

Be  it  enacted  hy  the  Senate  and  House  of  Representatives 
of  the  United  States  of  America  in  Congress  Assembled,  That 
the  Act  entitled  ''An  Act  to  permit  the  use  of  the  right  of 
way  through  the  public  lands  for  tramroads,  canals,  and  res- 
ervoirs, and  for  other  purposes,"  approved  January  twenty- 
first,  eighteen  hundred  and  ninety.-five,  be,  and  the  same  is 
hereby,  amended  by  adding  thereto  the  following : 

*'That  the  Secretary  of  the  Interior  be,  and  hereby  is, 
authorized  and  empowered,  under  general  regulations  to  be 
fixed  by  him,  to  permit  the  use  of  right  of  way  upon  the 
public  lands  of  the  United  States,  not  within  limits  of  any 
park,  forest,  military,  or  Indian  reservations,  for  tramways, 
canals,  or  reservoirs,  to  the  extent  of  the  ground  occupied  by 
the  water  of  the  canals  and  reservoirs,  and  fifty  feet  on  each 
side  of  the  marginal  limits  thereof,  or  fifty  feet  on  each  side 
of  the  center  line  of  the  tramroad,  by  any  citizen  or  association 
of  citizens  of  the  United  States,  for  the  purposes  of  furnishing 
water  for  domestic,  public,  and  other  beneficial  uses. 

**Sec.  2.  That  the  rights  of  way  for  ditches,  canals,  or 
reservoirs  heretofore  or  hereafter  approved  under  the  pro- 
visions of  Sections  eighteen,  nineteen,  twenty,  and  twenty-one 
of  the  Act  entitled  *  An  Act  to  repeal  timber-culture  laws,  and 
for  other  purposes,'  approved  March  third,  eighteen  hundred 
and  ninety-one,  may  be  used  for  purposes  of  a  public  nature ; 
and  said  rights  of  way  may  be  used  for  purposes  of  water 
transportation,  for  domestic  purposes,  or  for  the  development 
of  power,  as  subsidiary  to  the  main  purpose  of  irrigation." 


18 

Chap.  372.    An  Act  Relating  to  Rights  of  Way  Through 
Certain  Parks,  Reservations,  and  Other  Public  Lands. 

Approved  February  15,  1901. 

31  V.  S.  Stats,  at  L.,  790. 

Be  it  eimcted  hy  the  Senate  and  House  of  Representatives 
of  the  United  States  of  America  in  Congress  Assembled,  That 
the  Secretary  of  the  Interior  be,  and  hereby  is,  authorized 
and  empowered,  under  general  regulations  to  be  fixed  by  him, 
to  permit  the  use  of  rights  of  way  through  the  public  lands, 
forest  and  other  reservations  of  the  United  States,  and  the 
Yosemite,  Sequoia,  and  General  Grrant  national  parks,  Cali- 
fornia, for  electrical  plants,  poles,  and  lines  for  the  generation 
and  distribution  of  electrical  power,  and  for  telephone  and 
telegraph  purposes,  and  for  canals,  ditches,  pipes  and  pipe 
lines,  flumes,  tunnels,  or  other  water  conduits,  and  for  water 
plants,  dams,  and  reservoirs  used  to  promote  irrigation  or 
mining  or  quarrying,  or  the  manufacturing  or  cutting  of  timber 
or  lumber,  or  the  supplying  of  water  for  domestic,  public,  or 
any  other  beneficial  uses  to  the  extent  of  the  ground  occupied 
by  such  canals,  ditches,  flumes,  tunnels,  reservoirs,  or  other 
water  conduits  or  water  plants,  or  electrical  or  other  works 
permitted  hereunder,  and  not  to  exceed  fifty  feet  on  each  side 
of  the  marginal  limits  thereof,  or  not  to  exceed  fifty  feet  on 
each  side  of  the  center  line  of  such  pipes  and  pipe  lines, 
electrical,  telegraph,  and  telephone  lines  and  poles,  by  any 
citizen,  association,  or  corporation  of  the  United  States,  where 
it  is  intended  by  such  to  exercise  the  use  permitted  hereunder 
or  any  one  or  more  of  the  purposes  herein  named :  Provided, 
That  such  permits  shall  be  allowed  within  or  through  any 
of  said  parks  or  any  forest,  military,  Indian,  or  other  reserva- 
tion only  upon  the  approval  of  the  chief  officer  of  the  Depart- 
ment under  whose  supervision  such  park  or  reservation  falls 
and  upon  a  finding  by  him  that  the  same  is  not  incompatible 
with  the  public  interest:  Provided  further,  That  all  permits 
given  hereunder  for  telegraph  and  telephone  purposes  shall 


19 

be  subject  to  the  provision  of  title  sixty-five  of  the  Revised 
Statutes  of  the  United  States,  and  amendments  thereto,  regu- 
lating rights  of  way  for  telegraph  companies  over  the  public 
domain:  And  provided  further,  That  any  permission  given 
by  the  Secretary  of  the  Interior  under  the  provisions  of  this 
Act  may  be  revoked  by  him  or  his  successor  in  his  discretion, 
and  shall  not  be  held  to  confer  any  right,  or  easement,  or 
interest  in,  to,  or  over  any  public  land,  reservation,  or  park. 


20 

Chap.  1093.  An  Act  Appropriating  the  Receipts  From  the 
Sale  and  Disposal  op  Public  Lands  in  Certain  States 
AND  Territories  to  the  Construction  of  Irrigation 
Works  for  the  Reclamation  of  Arid  Lands. 

Approved  June  17,  1902. 

32  U.  S.  Stat  at  L.,  388. 
*      *      «      «      « 

Sec.  8.  That  nothing  in  this  Act  shall  be  construed  as 
affecting  or  intended  to  affect  or  to  in  any  way  interfere  with 
the  laws  of  any  State  or  Territory  relating  to  the  control, 
appropriation,  use,  or  distribution  of  water  used  in  irrigation, 
or  any  vested  right  acquired  thereunder,  and  the  Secretary  of 
the  Interior,  in  carrying  out  the  provisions  of  this  Act,  shall 
proceed  in  conformity  with  such  laws,  and  nothing  herein  shall 
in  any  way  affect  any  right  of  any  State  or  of  the  Federal 
Government  or  of  any  land  owner,  appropriator,  or  user  of 
water  in,  to,  or  from  any  interstate  stream  or  the  waters 
thereof :  Provided,  That  the  right  to  the  use  of  water  acquired 
under  the  provisions  of  this  Act  shall  be  appurtenant  to  the 
land  irrigated,  and  beneficial  use  shall  be  the  basis,  the 
measure,  and  the  limit  of  the  right. 


21 

Chap.  288.  An  Act  Providing  for  the  Transfer  of  Forest 
Reserves  From  the  Department  of  the  Interior  to 
THE  Department  of  Agriculture. 

Approved  February  1,  1905. 
33  U.  8.  Stats,  at  L.,  628. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives 
of  the  United  States  of  America  in  Congress  Assembled,  That 
the  Secretary  of  the  Department  of  Agriculture  shall,  from 
and  after  the  passage  of  this  Act,  execute  or  cause  to  be 
executed  all  laws  affecting  public  lands  heretofore  or  hereafter 
reserved  under  the  provisions  of  section  twenty-four  of  the 
Act  entitled  "An  Act  to  repeal  the  timber-culture  laws,  and 
for  other  purposes, ' '  approved  March  third,  eighteen  hundred 
and  ninety-one,  and  Acts  supplemental  to  and  amendatory 
thereof,  after  such  lands  have  been  so  reserved,  excepting 
such  laws  as  affect  the  surveying,  prospecting,  locating,  appro- 
priating, entering,  relinquishing,  reconveying,  certifying,  or 
patenting  of  any  of  such  lands. 

Sec.  2.  That  pulp  wood  or  wood  pulp  manufactured  from 
timber  in  the  district  of  Alaska  may  be  exported  therefrom. 

Sec.  3.  That  forest  supervisors  and  rangers  shall  be  se- 
lected, when  practicable,  from  qualified  citizens  of  the  States 
or  Territories  in  which  the  said  reserves,  respectively,  are 
situated. 

Sec.  4.  That  rights  of  way  for  the  construction  and  main- 
tenance of  dams,  reservoirs,  water  plants,  ditches,  flumes, 
pipes,  tunnels,  and  canals,  within  and  across  the  forest  reserves 
of  the  United  States,  are  hereby  granted  to  citizens  and  cor- 
porations of  the  United  States  for  municipal  or  mining 
purposes,  and  for  the  purposes  of  the  milling  and  reduction  of 
ores,  during  the  period  of  their  beneficial  use,  under  such  rules 
and  regulations  as  may  be  prescribed  by  the  Secretary  of  the 
Interior,  and  subject  to  the  laws  of  the  State  or  Territory  in 
which  said  reserves  are  respectively  situated. 

Sec,  5.     That   all  money  received  from  the  sale   of  any 


22 

products  or  the  use  of  any  land  or  resources  of  said  forest 
reserves  shall  be  covered  into  the  Treasury  of  the  United 
States  and  for  a  period  of  five  years  from  the  passage  of  this 
Act  shall  constitute  a  special  fund  available,  until  expended, 
as  the  Secretary  of  Agriculture  may  direct,  for  the  protection, 
administration,  improvement,  and  extension  of  Federal  forest 
reserves. 


23 

Chap.  456.  An  Act  for  the  Protection  of  the  Public 
Forest  Reserves  and  National  Parks  of  the  United 
States. 

Approved  February  6,  1905. 

33  U.  8.  Stats,  at  L.,  700. 

Be  it  enacted  hy  the  Senate  and  House  of  Representatives 
of  the  United  States  of  America  in  Congress  Assemhled,  That 
all  persons  employed  in  the  forest  reserve  and  national  park 
service  of  the  United  States  shall  have  authority  to  make 
arrests  for  the  violation  of  the  laws  and  regulations  relating 
to  the  forest  reserves  and  national  parks,  and  any  person  so 
arrested  shall  be  taken  before  the  nearest  United  States  com- 
missioner, within  whose  jurisdiction  the  reservation  or  national 
park  is  located,  for  trial ;  and  upon  sworn  information  by  any 
competent  person  any  United  States  commissioner  in  the 
proper  jurisdiction  shall  issue  process  for  the  arrest  of  any 
person  charged  with  the  violation  of  said  laws  and  regulations ; 
but  nothing  herein  contained  shall  be  construed  as  preventing 
the  arrest  by  any  officer  of  the  United  States,  without  process, 
of  any  person  taken  in  the  act  of  violating  said  laws  and 
regulations. 


24 

Chap.  152.  An  Act  Granting  to  Railroads  the  Eight  of 
Way  Through  the  Public  Lands  op  the  United  States. 
Approved  March  3,  1875. 

18  U.  8.  stats.,  at  L.,  482. 

Be  it  enacted  hy  the  Senate  and  House  of  Representatives 
of  the  United  States  of  America  in  Congress  Assembled,  That 
the  right  of  way  through  the  public  lands  of  the  United  States 
is  hereby  granted  to  any  railroad  company  duly  organized 
under  the  laws  of  any  State  or  Territory,  except  the  District 
of  Columbia,  or  by  the  Congress  of  the  United  States,  which 
shall  have  filed  with  the  Secretary  of  the  Interior  a  copy  of 
its  articles  of  incorporation,  and  due  proofs  of  its  organization 
under  the  same,  to  the  extent  of  one  hundred  feet  on  each 
side  of  the  central  line  of  said  road;  also  the  right  to  take, 
from  the  public  lands  adjacent  to  the  line  of  said  road, 
material,  earth,  stone,  and  timber  necessary  for  the  con- 
struction of  said  railroad;  also  ground  adjacent  to  such  right 
of  way  for  station-buildings,  depots,  machine  shops,  side- 
tracks, turn-outs,  and  water-stations,  not  to  exceed  in  amount 
twenty  acres  for  each  station,  to  the  extent  of  one  station  for 
each  ten  miles  of  its  road. 

Sec.  2.  That  any  railroad  company  whose  right  of  way, 
or  whose  track  or  road-bed  upon  such  right  of  way,  passes 
through  any  canyon,  pass,  or  defile  shall  not  prevent  any  other 
railroad  company  from  the  use  and  occupancy  of  the  said 
canyon,  pass,  or  defile,  for  the  purposes  of  its  road,  in  common 
with  the  road  first  located,  or  the  crossing  of  other  railroads 
at  grade.  And  the  location  of  such  right  of  way  through  any 
canyon,  pass,  or  defile  shall  not  cause  the  disuse  of  any  wagon 
or  other  public  highway  now  located  therein,  nor  prevent  the 
location  through  the  same  of  any  such  wagon  road  or  highway 
where  such  road  or  highway  may  be  necessary  for  the  public 
accommodation ;  and  where  any  change  in  the  location  of  such 
wagon  road  is  necessary  to  permit  the  passage  of  such  rail- 
road through  any  canyon,  pass,  or  defile,  said  railroad  com- 
pany shall  before  entering  upon  the  ground  occupied  by  such 


25 

wagon  road,  cause  the  same  to  be  reconstructed  at  its  own 
expense  in  the  most  favorable  location,  and  in  as  perfect  a 
manner  as  the  original  road:  Provided,  That  such  expenses 
shall  be  equitably  divided  between  any  number  of  railroad 
companies  occupying  and  using  the  same  canyon,  pass,  or 
defile. 

Sec.  3.  That  the  legislature  of  the  proper  Territory  may 
provide  for  the  manner  in  which  private  lands  and  possessory 
claims  on  the  public  lands  of  the  United  States  may  be  con- 
demned; and  where  such  provision  shall  not  have  been  made, 
such  condemnation  may  be  made  in  accordance  with  section 
three  of  the  Act  entitled  *'An  Act  to  aid  in  the  construction  of 
a  railroad  and  telegraph  line  from  the  Missouri  Eiver  to  the 
Pacific  Ocean,  and  to  secure  to  the  Government  the  use  of  the 
same  for  postal,  military,  and  other  purposes,  approved  July 
first,  eighteen  hundred  and  sixty-two,"  approved  July  second, 
eighteen  hundred  and  sixty-four. 

Sec.  4.  That  any  railroad-company  desiring  to  secure  the 
benefits  of  this  act,  shall,  within  twelve  months  after  the 
location  of  any  section  of  twenty  miles  of  its  road,  if  the  same 
be  upon  surveyed  lands,  and,  if  upon  unsurveyed  lands,  within 
twelve  months  after  the  survey  thereof  by  the  United  States, 
file  with  the  register  of  the  land  office  for  the  district  where 
such  land  is  located  a  profile  of  its  road;  and  upon  approval 
thereof  by  the  Secretary  of  the  Interior  the  same  shall  be 
noted  upon  the  plats  in  said  office;  and  thereafter  all  such 
lands  over  which  such  right  of  way  shall  pass  shall  be  disposed 
of  subject  to  such  right  of  way :  Provided,  That  if  any  section 
of  said  road  shall  not  be  completed  within  five  years  after  the 
location  of  said  section,  the  rights  herein  granted  shall  be 
forfeited  as  to  any  such  uncompleted  section  of  said  road. 

Sec.  5.  That  this  act  shall  not  apply  to  any  lands  within 
the  limits  of  any  military,  park,  or  Indian  reservation,  or 
other  lands  specially  reserved  from  sale,  unless  such  right  of 
way  shall  be  provided  for  by  treaty-stipulation  or  by  act  of 
Congress  heretofore  passed. 

Sec.  6.  That  Congress  hereby  reserves  the  right  at  any 
time  to  alter,  amend,  or  repeal  this  act,  or  any  part  thereof. 


